On April 8, 2021, the Tennessee Supreme Court Board of Professional Responsibility censured Jeffery Dennis Johnson for disclosing confidential client information in a response to a negative on-line review and thereby violating Tennessee Rule 1.9(c). That rule provides that a lawyer shall not reveal information relating to a prior client or use such information to the disadvantage of the former client unless (1) the former client gives informed consent, confirmed in writing, or (2) the rules would permit or the lawyer to do so with respect to a client, or (3) the information has become generally known. See Tenn. Rules of Prof’l Responsibility, rule 1.9(c). Said the board:
Mr. Johnson received an on-line “google” review from a former client who included his name in the review. Mr. Johnson posted a response on-line which stated details about the former client, including health and medical conditions of the former client and the type of case in which Mr. Johnson represented the client. Mr. Johnson also stated that the former client asked him to make false representations to the court. Mr. Johnson’s comments were not favorable to the former client and were posted on a publicly accessible website.
ABA Formal Opinion 496
The Tennessee board’s determination that Mr. Johnson violated Rule 1.9(c) is consistent with recent guidance disseminated by the ABA Standing Committee on Ethics and Professional Responsibility. On January 13, 2021, the ABA Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 496 addressing a lawyer’s ethical obligations under Model Rule 1.6(a) in responding to negative online reviews and providing several “best practice” tips.
First, the Committee considered Model Rule 1.6(a), which 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 Model Rule of Professional Conduct rule 1.6(a); see also 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 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.
Next, 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.”
The result in Mr. Johnson’s discipline case should be a cautionary tale to the lawyers maintaining an active on-line presence. Tempting as it may be to respond to negative comments, lawyers must be cognizant not to harm former clients by responding to them.