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Proposed Advisory Opinions

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Proposed Advisory Opinions

Advisory ethics opinions are not binding.

The Professional Ethics Committee has issued Proposed Advisory Opinion 20-1 reprinted below. Pursuant to Rule 4(c) and (d) of The Florida Bar Procedures for Ruling on Questions of Ethics, comments from Florida Bar members are solicited on the proposed opinion. The committee will consider any comments received at a meeting to be held Friday, June 19, 2020 at the Hilton Orlando Bonnet Creek & Waldorf Astoria in conjunction with the bar’s Annual Convention. Comments must contain the proposed advisory opinion number and clearly state the issues for the committee to consider. A written argument may be included explaining why The Florida Bar member believes the committee’s opinion is either correct or incorrect and may contain citations to relevant authorities. Comments should be submitted to Elizabeth Clark Tarbert, Ethics Counsel, The Florida Bar, 651 E. Jefferson St., Tallahassee 32399-2300, and must be postmarked no later than March 31, 2020.

Proposed Advisory Opinion 20-1 (February 7, 2020)

A member of The Florida Bar has requested an advisory ethics opinion. The operative facts as presented in the inquiring attorney’s letter are as follows:

The inquirer received a negative online review and would like to respond to the former client’s negative review that the inquirer “took her money and ran” by using the language suggested in Texas Ethics Opinion 662 and adding an objectively verifiable truthful statement that the Court entered an order authorizing the inquirer to withdraw as counsel for the former client. The inquirer believes this added language is proportional and restrained, consistent with the Texas Ethics Opinion, directly addressed the allegations of the former client, and should be permissible under the Rules Regulating the Florida Bar and the First Amendment.

Rule 4-1.6(c) explains when a lawyer may reveal confidential information and states:

(c) When Lawyer May Reveal Information. A lawyer may reveal confidential information to the extent the lawyer reasonably believes necessary:

(1) to serve the client’s interest unless it is information the client specifically requires not to be disclosed;(2) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and client;

(3) to establish a defense to a criminal charge or civil claim against the lawyer based on conduct in which the client was involved;

(4) to respond to allegations in any proceeding concerning the lawyer’s representation of the client;

(5) to comply with the Rules Regulating The Florida Bar; or

(6)  to detect and resolve conflicts of interest between lawyers in different firms arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client.

The comment to the rule explains:

A fundamental principle in the client-lawyer relationship is that, in the absence of the client’s informed consent, the lawyer must not reveal information relating to the representation…The confidentiality rule applies not merely to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source. A lawyer may not disclose confidential information except as authorized or required by the Rules Regulating The Florida Bar or by law.

In addition, the last paragraph of the comment specifically addresses the lawyer’s duty of confidentiality to former clients and explains that the duty of confidentiality continues after the client-lawyer relationship has terminated.

A number of jurisdictions have looked at the issue of responding to negative online reviews. A majority conclude that a lawyer may not disclose confidential information in responding to on-line reviews. See Los Angeles County Ethics Opinion 525 (an attorney can publicly respond to a former client’s disparaging comments only if the attorney’s response does not disclose confidential information, the attorney does not respond in a manner that will injure the former client in a matter involving the former representation, and the attorney’s response is proportionate and restrained); Nassau County Ethics Opinion No. 2016-01 (a lawyer may not disclose a former client’s confidential information solely to respond to criticism of the lawyer posted on the Internet or a website by a relative of the former client or by the former client himself); New York Ethics Opinion 1032 (a lawyer may not disclose confidential information just to respond to on-line criticism by the client on a rating site; the “self-defense” exception to confidentiality does not apply to informal criticism where there is no actual or threatened proceeding against the lawyer); Pennsylvania Ethics Opinion 2014-200 (a lawyer may not give detailed response to on-line criticism of the lawyer by a client, may just ignore the on-line criticism; the self-defense exception is not triggered by a negative on-line review); West Virginia Legal Ethics Opinion 2015-02 (a lawyer may respond to positive or negative on-line reviews, but may not disclose confidential client information while doing so); People v. Underhill, 15 PDJ 040 (Colo. 2015) (a lawyer was suspended 18 months for responding to clients’ on-line criticism by posting confidential and sensitive information about the clients); People v. Lance Eldon Issac, 15 PDJ 099 (Colo. 2016)( a lawyer was given a six-month suspension with requirement to apply for reinstatement for responding to online reviews of former clients when the lawyer had revealed confidential information including the criminal charges made against clients, that client wrote a check that had bounced, and that client committed other unrelated felonies); In re Skinner, 740 S.E.2d 171 (Ga. 2013)(the Supreme Court of Georgia rejected a petition for voluntary discipline seeking a public reprimand for lawyer’s violation of the confidentiality rule by disclosing confidential client information on the Internet in response to client’s negative reviews of lawyer, citing lack of information about the violation in the record).

In the instant inquiry, the inquirer does not meet an exception to confidentiality under 4-1.6(c). Because confidentiality covers all information regarding the representation, whatever the source, and because this duty applies to former as well as current clients, the inquirer must not disclose confidential information without the client’s informed consent.

The preamble to Chapter 4 of the Rules Regulating the Florida Bar defines informed consent as “the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.”

Therefore, if the inquirer chooses to respond to the negative online review and the inquirer does not obtain the former client’s informed consent to reveal confidential information, the inquirer must not reveal confidential information regarding the representation, but must only respond in a general way, such as that the inquirer disagrees with the client’s statements. The inquirer should not disclose that the court entered an order allowing the inquirer to withdraw because that is information relating to the client’s representation and the client did not give informed consent for the inquirer to disclose.

The inquirer refers to Texas Ethics Opinion 622. That opinion explains that a lawyer may not respond to client’s negative internet review if the response discloses confidential information. The opinion gives an example of a proportional and restrained response that does not reveal any confidential information:

A lawyer’s duty to keep client confidences has few exceptions and in an abundance of caution I do not feel at liberty to respond in a point by point fashion in this forum. Suffice it to say that I do not believe that the post presents a fair and accurate picture of the events.

The suggested language found in Texas Ethics Opinion 622 would be an acceptable response for the inquirer. The inquirer also may state that the inquirer disagrees with the facts stated in the review.