Responding to Negative Online Reviews
Adopted: July 16, 2021
Opinion rules that a lawyer is not permitted to include confidential information in a response to a client’s negative online review but is not barred from responding in a professional and restrained manner.
Inquiry #1:
Lawyer’s former client posted a negative review of Lawyer’s representation on a consumer rating website. Lawyer does not have the ability to edit or remove reviews posted on the consumer rating website. Lawyer believes that the former client’s comments are false. Lawyer believes that certain information in Lawyer’s possession about the representation would rebut the negative allegations. The information in question constitutes confidential information as defined by Rule 1.6(a).
In what manner may Lawyer publicly respond to the former client’s negative online review?
Opinion #1:
In response to the former client’s negative online review, Lawyer may post a professional and restrained response that does not reveal any confidential information. Lawyer may deny the veracity of the review, but lawyer may not use confidential client information to contradict specific facts set out in therein. Online reviews are written by current or past clients and posted publicly. Typically, reviews will include a comment from the client regarding the lawyer’s services as well as some type of “rating.” Once the review is posted, it is visible to the public. Online reviews are today’s personal recommendations. Many potential clients will read -and rely on- online reviews as the first step to finding a lawyer.
Because online reviews are so important to a lawyer’s practice, online reputation management is crucial. Therefore, it may be in the lawyer’s best interest to respond to a negative review. Nevertheless, the protection of client confidences is one of the most significant responsibilities imposed on a lawyer. Rule 1.6(a) of the Rules of Professional Conduct provides that a lawyer may not reveal information acquired during the professional relationship with a client unless (1) the disclosure is impliedly authorized in order to carry out the representation; (2) the client gives informed consent; or (3) one of the exceptions set out in Rule 1.6(b) applies. Rule 1.6(a) applies to all information acquired during the representation. Under Rule 1.9(c), a lawyer is generally prohibited from using or revealing confidential information of a former client. Responding to a negative online review is not necessary to “carry out the representation.” Therefore, Lawyer may not reveal confidential information in response to the negative online review unless the former client consents or an exception set out in Rule 1.6(b) applies. See 2018 FEO 1 (lawyers are cautioned to avoid disclosing confidential client information when responding to a negative review).
No exception in Rule 1.6(b) allows Lawyer to reveal confidential information in response to a former client’s negative review. The only exception potentially applicable to the facts presented is the “self-defense exception” set out in Rule 1.6(b)(6). Rule 1.6(b)(6) recognizes three circumstances in which the self-defense exception to the lawyer’s general duty of non-disclosure may apply: (1) in a controversy between the lawyer and client; (2) when a criminal charge or civil claim has been asserted against the lawyer based upon conduct in which the client was involved; or (3) in any proceeding concerning the lawyer’s representation of the client. Comment [11] to Rule 1.6 provides guidance as to the application of the self-defense exception. Pursuant to Comment [11]:
Where a legal claim or disciplinary charge alleges complicity of the lawyer in a client's conduct or other misconduct of the lawyer involving representation of the client, the lawyer may respond to the extent the lawyer reasonably believes necessary to establish a defense. The same is true with respect to a claim involving the conduct or representation of a former client. Such a charge can arise in a civil, criminal, disciplinary or other proceeding and can be based on a wrong allegedly committed by the lawyer against the client or on a wrong alleged by a third person, for example, a person claiming to have been defrauded by the lawyer and client acting together. The lawyer's right to respond arises when an assertion of such complicity has been made. Paragraph (b)(6) does not require the lawyer to await the commencement of an action or proceeding that charges such complicity, so that the defense may be established by responding directly to a third party who has made such an assertion. The right to defend also applies, of course, where a proceeding has been commenced.
Rule 1.6, cmt. [11] (emphasis added). Because online criticism, standing alone, does not constitute a “criminal charge,” “civil claim,” or “proceeding,” the remaining question is whether a negative online review creates a “controversy” between the lawyer and client as to which the lawyer may disclose otherwise protected client-related information in order “to establish a claim or defense.”
Several jurisdictions conclude that a negative online review does not amount to a controversy that triggers the self-defense exception. In addition, the ABA Standing Committee on Ethics and Professional Responsibility concludes that, “alone, 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), and therefore does not allow disclosure of confidential information relating to a client’s matter.” ABA Formal Op. 496 (2021). We agree with the analyses set out in these ethics opinions. For example, the Pennsylvania Bar Association concludes that while there are certain circumstances that would allow a lawyer to reveal confidential client information, a negative online client review is not a circumstance that invokes the self-defense exception. The Committee states:
A disagreement as to the quality of a lawyer’s services might qualify as a “controversy.” However, such a broad interpretation is problematic for two reasons. First, it would mean that any time a lawyer and a client disagree about the quality of the representation, the lawyer may publicly divulge confidential information. Second, [Comment [11]] makes clear that a lawyer’s disclosure of confidential information to “establish a claim or defense” only arises in the context of a civil, criminal, disciplinary or other proceeding.
Penn. Bar Ass’n Ethics Comm. Op. 2014-200. Likewise, the New York State Bar Association opines that, “the mere fact that a former client has posted critical commentary on a website is insufficient to permit a lawyer to respond to the commentary with disclosure of the former client’s confidential information. . . . Unflattering but less formal comments on the skills of lawyers, whether in hallway chatter, a newspaper account, or a website are an inevitable incident of the practice of a public profession.” New York State Bar Ass’n Comm. on Prof’l Ethics Op. 1032 (2014). The Professional Ethics Committee for the State Bar of Texas opines that the self-defense exception “cannot reasonably be interpreted to allow public disclosure of a former client’s confidences just because a former client has chosen to make negative comments about the lawyer on the internet.” Texas Center for Legal Ethics Op. 662 (2016). Similarly, the Nassau County Bar Association states that the exception does not apply to “informal complaints such as posting criticisms on the Internet.” Bar Ass’n of Nassau County Comm. on Prof’l Ethics Op. 2016-1. The Restatement of the Law Governing Lawyers similarly states that the self-defense exception to the duty of confidentiality is limited to “charges that imminently threaten the lawyer or the lawyer’s associate or agent with serious consequences, including criminal charges, claims of legal malpractice, and other civil actions such as suits to recover overpayment of fees, complaints in disciplinary proceedings, and the threat of disqualification[.]” Restatement (Third) of the Law Governing Lawyers § 64, cmt. c. (Am. Law Inst. 2000).
We note that Comment [11] to Rule 1.6 provides that a lawyer does not have to “await the commencement” of an action or proceeding to rely on the self-defense exception. Nonetheless, we agree with the Pennsylvania Bar Association that there must be an action or proceeding in contemplation for the exception to apply. See Penn. Bar Ass’n Ethics Comm. Op. 2014-200. The Restatement explains that, in the absence of the filing of a charge, there must be “the manifestation of intent to initiate such proceedings by persons in an apparent position to do so, such as a prosecutor or aggrieved potential litigant.” The Restatement (Third) of the Law Governing Lawyers § 64. As noted in the Restatement:
Use or disclosure of confidential client information . . . is warranted only if and to the extent that the disclosing lawyer reasonably believes necessary. The concept of necessity precludes disclosure in responding to casual charges, such as comments not likely to be taken seriously by others. The disclosure is warranted only when it constitutes a proportionate and restrained response to the charges. The lawyer must believe that options short of use or disclosure have been exhausted or will be unavailing or that invoking them would substantially prejudice the lawyer’s position in the controversy.
Id. It is the “manifestation of intent” that makes the disclosure of confidential client information “reasonably necessary” under Rule 1.6(b)(6). The online posting of negative comments about a lawyer does not amount to the requisite “manifestation of intent” to initiate proceedings against the lawyer that would permit the lawyer to rely on the self-defense exception. Furthermore, as noted in ABA Formal Op. 496, “even if an online posting rose to the level of a controversy between lawyer and client, a public response is not reasonably necessary or contemplated by Rule 1.6(b) in order for the lawyer to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client.”
Inquiry #2:
An individual who is not a current or former client, and has never consulted with Lawyer with respect to a particular matter, posts a negative review of Lawyer’s legal services on a consumer rating website. May Lawyer respond to the post by stating that he has never represented the individual?
Opinion #2:
Yes. The duty of confidentiality set out in Rule 1.6 only applies to information obtained during a lawyer-client relationship.
Inquiry #3:
A potential client contacts lawyer for representation. Lawyer declines the representation – perhaps because he does not practice in the relevant area of law, he has a conflict, or he does not believe the case has merit. The potential client posts a negative review of Lawyer on a consumer rating website.
May Lawyer respond to the post by stating that he has never represented the individual?
Opinion #3:
Yes, unless the client is entitled to the protections set out in Rule 1.18 for prospective clients. Comment [2] to Rule 1.18 provides:
A person becomes a prospective client by consulting with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter. Whether communications, including written, oral, or electronic communications, constitute a consultation depends on the circumstances. For example, a consultation is likely to have occurred if a lawyer, either in person or through the lawyer’s advertising in any medium, specifically requests or invites the submission of information about a potential representation without clear and reasonably understandable warnings and cautionary statements that limit the lawyer’s obligations, and a person provides information in response. In such a situation, to avoid the creation of a duty to the person under this Rule, a lawyer has an affirmative obligation to warn the person that a communication with the lawyer will not create a client-lawyer relationship and information conveyed to the lawyer will not be confidential or privileged. See also Comment [4]. In contrast, a consultation does not occur if a person provides information to a lawyer in response to advertising that merely describes the lawyer’s education, experience, areas of practice, and contact information, or provides legal information of general interest. Such a person is communicating information unilaterally to a lawyer, without any reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship, and is thus not a “prospective client.”
Pursuant to Rule 1.18(a), a person who consults with a lawyer with respect to a particular matter is a prospective client. Prospective clients are entitled to some of the protections afforded clients. Rule 1.18, cmt. [1]. Specifically, Rule 1.18(b) prohibits a lawyer from using or revealing information obtained during a consultation with a prospective client- except as permitted by Rule 1.9 – even if the lawyer decides not to proceed with the representation. Notably, the duty exists regardless of how brief the initial conference may be. Rule 1.18, cmt. [3].
Lawyer may not confirm or deny his representation of a prospective client. Lawyer may, however, state that it is not possible for him to accept every prospective client’s case. Lawyer may enumerate the various reasons that a prospective client’s case may be declined.
Inquiry #4:
A relative or a friend of a former client posts a negative review of Lawyer’s representation of the former client on a consumer rating website.
Lawyer believes that the comments are false. Lawyer believes that certain information in Lawyer’s possession about the representation would rebut the negative allegations. The information in question constitutes confidential information as defined by Rule 1.6(a).
In what manner may Lawyer publicly respond to the comments?
Opinion #4:
Lawyer may respond that he never represented the relative or friend. See Inquiry #2. In addition, Lawyer may post a professional and restrained response to the negative review but may not disclose confidential client information obtained during the representation of the former client, unless the former client consents. See Inquiry #1.
Inquiry #5:
Lawyer’s former client posted a negative review of Lawyer’s representation on a consumer rating website. Lawyer believes that the former client’s comments are false and libelous. May Lawyer sue his former client for defamation and disclose confidential client information to establish the claim?
Opinion #5:
Yes. If there is a basis in law and fact for a defamation suit against the former client, the Rules of Professional Conduct do not prohibit Lawyer from filing such a suit. Pursuant to Rule 1.6(b)(6), Lawyer may reveal information protected from disclosure by Rule 1.6(a) to the extent the lawyer reasonably believes necessary to establish the defamation claim.
Inquiry #6:
May Lawyer include the following provision in his representation agreement?
A lawyer is generally prohibited from using or revealing confidential information of a former client. Client agrees that confidential information may nonetheless be revealed by Lawyer in the event Client publishes or causes the publication of a claim on the internet that Client’s representation by Lawyer was deficient in some respect, but only to the extent reasonably necessary to directly rebut such a claim.
Opinion #6:
No. Rule 1.6(a) provides that a lawyer may not reveal information acquired during the professional relationship with a client unless (1) the client gives informed consent; (2) the disclosure is impliedly authorized; or (3) one of the exceptions set out in Rule 1.6(b) applies. Pursuant to Rule 1.0(f), “informed consent” denotes the agreement by the client to a proposed course of conduct “after the lawyer has communicated adequate information and explanation appropriate to the circumstances.” The proposed representation agreement provision does not provide adequate information and explanation such that the client could give informed consent to the prospective disclosure of confidential client information in the hypothetical circumstance set out in the proposed provision.
Inquiry #7:
May Lawyer give a client something of value in exchange for the client altering or removing a negative online review?
Opinion #7:
No. Lawyer may respond to a negative online review with a request that the former client contact the lawyer to discuss the former client’s concerns, but there can be no quid pro quo for a revised or withdrawn review. See 2018 FEO 7.
A lawyer may, however, attempt to resolve disputes with an unhappy client, including disputes over the value of legal services provided by a lawyer. See ABA Formal Op. 496. A lawyer may not condition the negotiation, or his willingness to offer a refund, on a client’s withdrawal of a posted negative online review. If a lawyer is able to resolve such a fee dispute, the lawyer may request that the client remove the negative online review, but the lawyer may not provide anything of value in exchange for the removal.
Nothing in this opinion should be construed to prohibit a lawyer from pursuing and/or resolving a legitimate legal claim against the author of a negative review, which may include removal of the review as a term for the ultimate resolution of the claim. For example, Lawyer may offer to dismiss or not pursue a legitimate claim for defamation against the author of a false, negative online review in exchange for removal of the review.