Two recent bar association advisory opinions address whether a lawyer can disclose confidential information when responding to a client’s on-line criticism. See New York State Bar Assoc. Ethics Op. 1032 (Oct. 30, 2014); San Francisco Bar Assoc. Op. 2014-1 (Jan. 2014). The California opinion concluded:
Attorney is not barred from responding generally to an online review by a former client where the former client’s matter has concluded. Although the residual duty of loyalty owed to the former client does not prohibit a response, Attorney’s ongoing duty of confidentiality prohibits Attorney from disclosing any confidential information about the prior representation absent the former client’s informed consent or a waiver of confidentiality. California’s statutory self-defense exception, as interpreted by California case law, has been limited in application to claims by a client (against or about an attorney), or by an attorney against a client, in the context of a formal or imminent legal proceeding.
The New York opinion’s conclusion was the same but more concise: “A lawyer may not disclose client confidential information solely to respond to a former client’s criticism of the lawyer posted on a website that includes client reviews of lawyers.”
This is good advice. The Louisiana Rules of Professional Conduct allow a lawyer to disclose confidential information in self-defense. However, such a disclosure must not only be “reasonably . . . necessary,” but also attendant to an ongoing or imminent formal “proceeding”:
(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: . . .
(5) 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 . . . .
See La. Rules of Prof’l Conduct Rule 1.6(b)(5). Note that at least one lawyer outside of Louisiana has been formally disciplined for making such a disclosure. In In re Tsamis, an Illinois lawyer was publicly reprimanded for improperly disclosing confidential information in responding to an unfavorable Avvo.com post by her client. See In re Tsamis, Commission No. 2013PR00095, Illinois Disciplinary Commission (Jan. 15, 2014).
So, calm down. Wait a few days. And if you really must respond, do not disclose any client confidential information.