Internet access everywhere has made leaving a review easier than ever. A few keystrokes allow a disgruntled customer, former customer or stranger to post a negative review on any number of sites: Martindale Hubbell, Avvo, Yelp, Google, etc. Many of these sites lack the safeguards necessary to ensure the credibility of the audit and the seemingly zero-consequence environment provided by the Internet may encourage more negativity than is required. Lawyers should bear in mind ethical obligations when deciding how and whether to respond to such reviews, even if the reviews are questionable.
At the beginning of 2021, the American Bar Association (“ABA”) drafted the Official ABA Opinion 496 (the “Opinion”) to guide attorneys in dealing with negative online reviews by clients or former clients. Opinion focuses on the Rule Model of Professional Conduct (“MRPC”) 1.6. Section (a) of MRPC 1.6 prohibits an attorney from disclosing information relating to a client’s representation or information that could reasonably lead to the discovery of confidential information without the client’s informed consent. Although MRPC 1.6(b) allows disclosure of confidential information in certain circumstances, a negative online review alone does not constitute a controversy that would satisfy the exceptions listed in MRPC 1.6(b) (5). Furthermore, any response that discloses information relating to customer representation or that would result in the discovery of confidential information would exceed disclosure permitted under the MRPC.
Most state lawyers’ organizations have analyzed this issue and provided opinions on the matter. New York State Bar Ethics Opinion 1032 (2014) follows MRPC 1.6 and calls informal comments about lawyers’ skills an “inevitable accident of practice” and notes that such comment may “contribute to the body of knowledge about potential attorneys and clients.” Most Countries follow the MRPC and prohibit the disclosure of any confidential information or anything that would lead to the discovery of confidential information. The Official Arizona Union Opinion No. 93-02 (1993) (“The Arizona Opinion”) differs from the general rule. The Arizona Opinion newspaper failed to address online criticism but allowed the attorney to participate in an interview and reveal confidential information to defend against accusations by a former client that the attorney was incompetent and involved in a conspiracy against the client. Inconsistencies regarding permissible responses between states make a careful review of your state’s rules necessary before responding to a negative online review.
As a matter of threshold, customer secrets remain sacred and any response that comes close to revealing customer secrets is likely to be prohibited. Thus, if a response is allowed, then understand the limits of the response. If a direct response to assertions may reveal a client’s confidence, a response with “statements in this publication do not accurately reflect the matter” or “professional obligations preclude me from fully responding to this” may work. If it can be rectified, perhaps this would open the door to ‘Please contact me so we can discuss your concerns’. Remember, however, that failure to meet expectations may cause more negative stress.
If the response is not the answer, consider asking the website host or search engine to remove the post. In general, even when making such a request, an attorney needs to exercise caution and refrain from disclosing any information that is relevant to a client’s representation or could reasonably lead to the discovery of confidential information. If the post is published by a person who is not a customer or former customer, it may be possible to respond by indicating that the individual who posted the post is not a customer or former customer and, therefore, that there are no moral duties owed to the critic. However, even in this case, the lawyer should still be careful not to disclose information about clients and matters.
Most lawyers want to keep clients happy. Happy customers make good referral sources; Likewise, unhappy people represent missed opportunities. As with most relationships, increased communication goes a long way in preventing misunderstandings. A quick call or a short email providing a status update may help prevent a negative review. Our increasing reliance on the Internet combined with ease of access means that negative reviews have become an unfortunate byproduct of law practice. When faced with this situation, take a breath, review the rules, and respond accordingly.
Terina Stead, JD, MA (tax)
Associate Director of Education
American Academy of Estate Planning Lawyers, Inc.
9444 Balboa Street, Suite 300
San Diego, CA 92123
Phone: (858) 453-2128