On January 13, 2021, the ABA Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 496 addressing a lawyer’s ethical obligations in responding to negative online reviews.
Disclosing Confidential Client Information
Model Rule of Professional Conduct rule 1.6(a) prohibits a lawyer from disclosing information relating to a client’s representation, particularly information that could reasonably lead to the discovery of confidential information. See Louisiana Rules of Professional Conduct, r. 1.6(a).
The rule, however, provides for several exceptions. For example, a lawyer may reveal information if the lawyer reasonably believes that the disclosure is necessary to establish a claim or defense in a controversy between the lawyer and the client. But a negative online review, because of its informal nature, is not a “controversy between the lawyer and the client” within the meaning of Rule 1.6(b)(5). As a result, this exception does not allow a lawyer to disclose confidential information relating to a client’s matter to respond to an online review. Moreover, even if an online posting rose to the level of a controversy between lawyer and client, a public response on the Internet is not “reasonably necessary” to establish a claim or defense. As such, lawyers should avoid responding to negative online reviews.
The committee suggested the following “best practices” to lawyers who are the targets of negative online reviews:
- A lawyer may request that the host of the website or search engine remove the post.
- A lawyer may respond to the post with a request to take the conversation offline and to attempt to satisfy the poster.
- If the poster is not a client or former client, the lawyer may respond simply by stating that the person posting is not a client or former client. Note that a lawyer still must use caution in responding to posts from nonclients to assure that the lawyer discloses no client confidential information.
- If the poster is a client or former client, the lawyer may, but is not required to, respond directly to the client or former client. The lawyer may wish to consult with counsel before responding. The lawyer should not respond online, however.
- A lawyer may consider posting a note that the lawyer’s professional obligations do not permit the lawyer to respond. For example, the lawyer may post: “My professional obligations do not allow me to respond as I would wish.”