Ride the Lightning

Lawyers: Be Careful When Responding to Negative Reviews

January 19, 2021

Negative reviews online drive lawyers crazy. I know this because they call or write to ask me how to get those reviews offline. It's not so easy. And lawyers have been making ethical missteps in responding to negative ads for a very long time.

So . . . it was very helpful of the ABA to issue, on January 13, Formal Ethical Opinion 496 on this topic.

As the ABA Journal reported, when it comes to ethics, sometimes the best response to a negative review is no response at all. It's hard, because lawyers are frequently criticized in negative online reviews. Time and again, I've seen them violate their duty of confidentiality when replying to those reviews.

Formal Opinion 496 identifies "the main ethical concern" of any response a lawyer makes to a negative online review as ensuring the "confidentiality of client information." ABA Model Rule of Professional Conduct 1.6(a) generally provides that a lawyer shall not reveal information related to a client's case unless the client gives informed consent, the disclosure is authorized by law, or if an exception applies.

The only exception to an attorney responding to online reviews is stated in Rule 1.6(b)(5), providing that a lawyer may reveal information:

"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."

As the opinion says, an online review is not a "proceeding," and responding online is not necessary to establish a defense to a criminal or civil charge. The only part of the rule that even possibly would allow disclosure is establishing a claim or defense for the lawyer in a controversy between the lawyer and the client.

BUT, and it's a big but, the Committee reasoned that "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." The opinion further states that even if a negative online review rose to the level of a controversy, "a public response is not reasonably necessary … in order for the lawyer to establish a claim or defense."

As noted in the opinion, the majority of state ethics opinions that have addressed the issue have determined that "the posting of criticism does not rise to the level of a controversy that would allow a lawyer to disclose confidential information in responding."

The opinion offers some "best practices" for lawyers who have to deal with negative online reviews. A lawyer can ask the website host or search engine to remove the post says the ABA. The lawyer cannot relay confidential client information but can tell the website host that the post is not accurate. Good luck with that. I've seen challenges many times and so long as the lawyer does not challenge the fact of the representation, websites are loathe to remove them.

Of course, if they violate the terms of service, by advocating violence, being discriminatory, using hate speech, etc., that's a horse of another color. You may have some luck pointing out the violations and asking for the post to be removed.

"Lawyers should give serious consideration to not responding to negative online reviews in all situations," the opinion reads. Such a response may lead to a flurry of further posts by the original poster. Lawyers also could request to take the conversation offline with the generic response: "Please contact me by telephone so that we can discuss your concerns."

As much as I laughed at the first suggestion above, I have seen this second response work in a number of cases. It is worth trying.

If the poster is not a client or former client, the lawyer must use care in not disclosing any information "related to the client or former client's representation without the client or former client's informed consent." The opinion cautions: "Even a general disclaimer that the events are not accurately portrayed may reveal that the lawyer was involved in the events mentioned, which could disclose confidential client information."

If it is from a client or former client, the opinion says the lawyer may not respond with divulging any confidential information. They suggest a permissible response as being, "Professional obligations do not allow me to respond as I would wish."

I'm not crazy about that suggestion. The best kind of reply, in my opinion, is something along the lines of, "I am sorry you were disappointed in my representation. Please contact me by phone to discuss this matter." A lot of times, a phone call can convince the client to take down the post. But if that is not the result, the lawyer's reply looks polite and responsive to people reading the lawyer's reviews.

If you have a number of excellent reviews, people are willing to overlook the negative one, especially if it seems angry or histrionic. They are much more likely to believe the number of five-star reviews. From a practical point of view, my advice is to ask happy clients to review you online on a regular basis. Those reviews are a useful counterpoint to a negative review.

Sharon D. Nelson, Esq., President, Sensei Enterprises, Inc.
3975 University Drive, Suite 225|Fairfax, VA 22030
Email: Phone: 703-359-0700
Digital Forensics/Cybersecurity/Information Technology
https://senseient.com
https://twitter.com/sharonnelsonesq
https://www.linkedin.com/in/sharondnelson
https://amazon.com/author/sharonnelson