A former client of the Respondent posted three negative online reviews about him. Respondent posted online responses to all three reviews, disclosing that the client had been convicted of two crimes, which he specifically identified, and disclosing the client’s full name.
Pursuant to the definitional terms contained within Oregon Rule of Professional Conduct 1.0(f), “information relating to the representation of a client” as used in Rule 1.6 denotes not only information protected by the attorney-client privilege, but also other information gained in a professional relationship that the client has requested to be held inviolate or the disclosure of which would likely be embarrassing or detrimental to the client. The Respondent argued, nevertheless, that the information was not “embarrassing” as a matter of law. Respondent notes, in this regard, that the client’s name and criminal convictions are matters of public record, and further points out that a Public Records Request to the Oregon State Bar regarding the client’s previous Bar Complaint would have revealed such information. But the Oregon Supreme Court rejected this argument:
“Respondent revealed the information to members of the public reading online reviews of attorneys. Client’s reviews did not include his identity, or the fact of his convictions, or the specific criminal charges for which he had been convicted. Those who read respondent’s posts might have been able to gather that information themselves, but they were unlikely to seek it, and they would have had difficulty determining which of the millions of criminal records on file around the nation referred to the author of the reviews. It is theoretically possible that online readers could make a public records request with the Bar for complaints against respondent, thus identifying client and learning about his criminal convictions. But nothing about the reviews, or respondent’s responses, revealed that client had filed a Bar complaint. Even if the readers of online reviews guessed that client had done so, there is no reason to conclude that they would be aware of the possibility of making a public records request, or that, for those who were aware, they would take the time-consuming steps necessary to investigate the details of a single review. Indeed, if it could be expected that readers would go to such lengths to investigate the matter, then respondent would not have needed to include that information in his responses to the reviews; he could have taken it as a given that interested parties would obtain that information from the Bar.”
Respondent also claimed that he was permitted to “establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client.” The Oregon Supreme Court rejected this argument too:
“Respondent argues that there was a ‘controversy’ because the reviews were defamatory and would support his filing a civil action against client. The Bar does not dispute respondent’s contention that the reviews were defamatory, but it argues that ‘controversy’ requires some formal legal proceeding…. It is not clear how ‘controversy’ should be interpreted. ‘Controversy’ is not specifically defined in the Rules of Professional Conduct, and the general definitions of that word can be either broad (any dispute) or narrow (formal lawsuits). The comments to Model Rule 1.6 of the ABA Model Rules of Professional Conduct suggest that the self-defense exception is not limited to formally commenced legal proceedings. There are policy considerations that give us pause before so concluding, however. As suggested previously, the self-defense exception is not limited to client confidences that are merely embarrassing. If the exception applies, it also allows the attorney to breach the attorney-client privilege. The exception also is not limited to circumstances in which the opposing party is the client, whose actions might be considered a waiver of confidentiality; the exception also appears to reach accusations of wrongdoing by third parties. Even in disputes between the client and the attorney, the exception is not limited to situations in which the client initiates the conflict; the text contemplates that the attorney may initiate the controversy and reveal client confidences in order to establish a ‘claim’ (e.g., an action for fees). There may be good reason to limit the self-defense exception to formal legal proceedings so that the issue can first be submitted to a judge or other referee, rather than leave the decision to an attorney’s self-interested considerations regarding whether to breach the attorney-client privilege. In this case, however, we need not resolve that question. As we will explain, even assuming for purposes of argument that there was a ‘controversy’ between respondent and client, we conclude that respondent revealed information that he did not ‘reasonably believe necessary’ for him to establish his claim or defense….
“We consider the question a close one, at least as to the Yelp and Google reviews where client was not identified. On the whole, however, we agree with respondent that the disclosure was within the boundary of information that he reasonably believed was necessary to respond to the review. Client had asserted that he was not deportable with the charges against him. That raised the issue whether those charges, in fact, made client deportable. Respondent revealed that information in response to the Yelp and Google reviews (to the extent that the latter is part of the record) at least arguably to explain to the audience the grounds the government had asserted for deportation – conviction of a crime involving moral turpitude – and whether client’s crimes constituted such a crime. We agree that respondent could have reasonably believed it necessary to include that information in the responses. Respondent’s response to the Avvo review is a different matter. Here, respondent revealed not only client’s criminal convictions, but his full name. That changes the matter substantially. By posting client’s name together with the details of client’s criminal history, respondent revealed client’s identity and his convictions, not just to those persons who sought out these particular reviews, but also to other members of the public as well. Internet search engines would make client’s identity available to a much larger audience. Now anyone who searched for client’s name in an internet search engine, for any reason whatsoever, could uncover the details of client’s criminal convictions. We are not persuaded by respondent’s explanation for why he ‘needed’ to disclose client’s name. He asserts that he needed to do so to allow the public to ‘check’ the accuracy of client’s representations and respondent’s responses. We disagree. Respondent speculates that the public could use client’s name to assess the credibility of the review by, for example, reading other reviews by, or googling, client. Respondent does not explain how online readers would use client’s name in particular to obtain any information that would be useful to them. Respondent had already revealed the details of client’s criminal convictions, so online readers would not need to search for that. We therefore conclude that respondent was not objectively reasonable in his belief that it necessary to reveal client’s name in the Avvo review.”
In re Conduct of Conry, 368 Or. 349 (July 15, 2021).