By Stacey L. Romberg
This is the last of three installments designed to provide insight into recent ethics opinions governing attorney rating systems as well as specific factors attorneys should consider in deciding whether to participate in these systems, and if and how to respond to online criticism on these websites.
In my previous articles in this series, I discussed two recent ethics opinions on lawyers' participation in attorney rating systems: Utah State Bar Ethics Advisory Opinion 14-04 and the Washington State Bar Association's 2014 Advisory Opinion 201402. This article focuses on another aspect of attorney rating websites: the negative client review.
Molly Meticulous, a probate attorney, worked diligently in representing David Dissatisfied, the personal representative of his father's estate. As the probate progressed, Molly and David had frequent disputes. David thought that the formalities of the probate process, such as setting up an estate account and preparing an inventory of estate assets, were unnecessary. He believed Molly's instructions were simply designed to increase her fees.
After several months of negative interactions, David then refused to respond to Molly, and she was unable to reach him for several months. Molly decided to withdraw from representation.
Three months later Molly noticed, to her dismay, that David had posted a scathing review of Molly's services on an attorney rating website, stating that Molly "lied to me about the probate requirements," "overcharged the estate," and "abandoned me in the middle of the proceeding." He said, "Never hire this attorney. She is incompetent in everything other than sending bills."
Molly, feeling both livid and embarrassed, began typing a responsive post in her defense. Then she paused. "Should I respond? Should I post this?" she asked herself.1
Even if an attorney chooses not to participate in an attorney rating website such as Avvo, a client may still publish an online review of that attorney's performance. If a client's negative review is published on Avvo, an attorney who has not claimed his or her profile cannot respond, which may be a blessing in disguise.
If the profile has been claimed, the attorney may respond. But just because a lawyer can respond, does that mean that he or she should respond? And, if the lawyer decides to respond, what type of response is appropriate and compliant with the ethical rules?
Recent Ethics Opinions Concerning How Attorneys May Respond to a Negative Review
Four recent ethics opinions provide guidance to help lawyers stay within ethical boundaries if a current or former client posts a negative review. First, the Los Angeles County Bar Association has opined that an attorney may respond to a former client's negative posting "so long as: (1) Attorney's response does not disclose confidential information; (2) Attorney does not respond in a manner that will injure Former Client in a matter involving the former representation; and (3) Attorney's response is proportionate and restrained."2
Second, the Bar Association of San Francisco noted:
Attorney's disclosure in a public online forum has no judicial supervision and is accessible to anyone. Although the former client's assertion could impact Attorney's reputation, it is the Committee's opinion that such potential impact, by itself, is not of a nature that reasonably requires Attorney to disclose in a public forum what would otherwise be confidential information.3
This 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.... Attorney's on-going 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.... If the matter previously handled for the former client has not concluded, it may be inappropriate under the circumstances for Attorney to provide any substantive response in the online forum.4
Third, the New York State Bar Association determined that the "self-defense" exception to the ethical requirement of confidentiality applied to formal proceedings rather than "informal complaints such as this website posting," and concluded, "A lawyer may not disclose confidential information solely to respond to a former client's criticism of the lawyer posted on a website that includes client reviews of lawyers."5
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