Lawyers must be careful not to violate the duty of confidentiality when responding to negative online reviews and should consider refraining from such discourse altogether, the American Bar Association said in a new ethics opinion Wednesday (ABA press release available here).
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 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.”
The ABA’s Standing Committee on Ethics and Professional Responsibility advises that the best response is often no response at all, as social media become ubiquitous in the legal profession. "Lawyers who choose to respond online must not disclose information that relates to a client matter or that could reasonably lead to the discovery of confidential information by others," it said.