I recently came across an ABA Litigation News article by Renee Choy Ohlendorf entitled “Ethical Limits on Rebutting Client’s Disparaging Internet Comments”.
The article discusses Formal Opinion No. 525 by the Los Angeles County Bar Association’s (LACBA) Professional Responsibility and Ethics Committee, which purports to define a lawyer’s professional and ethical duties in responding to a disgruntled former client’s “disparaging public comments” made online, after the lawyer’s representation ended:
“the former client discouraged others from hiring the attorney on a lawyer review website, stating the attorney was incompetent and over-charged. There was no litigation or arbitration pending between the attorney and former client at the time of the posting. For the purposes of its analysis, the LACBA Committee assumed that the former client’s message contained no confidential information, did not waive confidentiality, and did not waive the attorney-client privilege.
Under those circumstances, the LACBA Committee concluded that a public response would be permissible, as long as (1) the attorney’s response did not disclose confidential information; (2) the attorney did not respond in a manner that would injure the former client in a matter involving the prior representation; and (3) the attorney’s response was proportionate and restrained. The Committee defined a “proportionate and restrained” response as one where the attorney “say[s] no more than is necessary to rebut the public statement made by Former Client,” which is also the standard governing attorneys in fee disputes and malpractice actions.
Ohlendorf notes that the LACBA Committee suggested that other jurisdictions following Model Rule of Professional Conduct 1.6(b)(5) may recognize a “self-defense” exception to an attorney’s duties of loyalty and confidentiality; albeit California does not recognize this exception.
It strikes me that the LACBA’s Formal Opinion No. 525 is out of synch with the reality of the proliferation of online lawyer review websites, many of which allow not only disgruntled clients, but also competitors to criticize and disparage lawyers under a cloak of anonymity. The ABA Model Rule of Professional Conduct 1.6(b)(5) appears to allow for a ‘self-defense’ exception to a lawyer’s continuing duties of confidentiality and loyalty to a former client, but only in respect of pending or actual legal proceedings—civil or criminal.
How is a lawyer to respond to an unfair or untrue online criticism, without instituting legal action to have the lawyer review website divulge the identity of the anonymous “client”?
Perhaps the better answer is why bother responding at all? An anonymous comment about a lawyer on a lawyer rating website is neither worth the time nor the expense, unless the comment is libellous. If that’s the case, then responding “not so” or “I disagree” is ineffectual.
For Ontario lawyers, Rule 2 of the Law Society of Upper Canada Rules of Professional Conduct delimits the lawyer’s relationship to clients. Sub-Rule 2.03(4) sets out the comparable “self-defense” exceptions to breaching a client’s confidences and reads:
2.03 (4) Where it is alleged that a lawyer or the lawyer’s associates or employees are
(a) guilty of a criminal offence involving a client’s affairs,
(b) civilly liable with respect to a matter involving a client’s affairs, or
(c) guilty of malpractice or misconduct,
a lawyer may disclose confidential information in order to defend against the allegations, but the lawyer shall not disclose more information than is required.
If what the former client says is fair comment, absent malice, then it may be an opportunity for self-reflection and asking yourself the following questions:
Did I explain to the client the risks inherent in the litigation?
Did I represent the client competently, efficiently, and effectively throughout the retainer?
Did I communicate with the client regularly about the strengths and weaknesses of the client’s case, and did I provide competent advice concerning the merits of settlement or proceeding to trial?
Did I determine the client’s expectations at the outset and were these expectations achievable?
Whether a lawyer failed to meet the client’s expectations is a function of a number of variables. Ultimately, it is the lawyer’s responsibility to not only determine the client’s expectations, but also to weed out those types of problem clients whose expectations can never be met, under any circumstances.