By Jim Ash
Attorneys are taught to be adversarial.
But The Florida Bar is advising members to resist the temptation, or to be very cautious, when it comes to former clients and negative online reviews.
Rating sites like Lawyers.com, Avvo, and Yelp require reviewers to pledge honesty, but do little else. That’s frustrating for attorneys who, under most circumstances, are barred by ethical constraints from revealing information about a case without a client’s consent.
Two years ago, a Colorado lawyer’s license was suspended for six months after he responded to a negative online review and revealed, among other things, that the client had bounced a check and committed unrelated felonies.
The same year in Florida, in Blake v. Giustibelli, the Fourth District Court of Appeal upheld a $350,000 libel judgement against a divorcing couple who posted an online review that falsely accused the attorney of inflating fees and falsifying a contract.
Last month, The Florida Bar’s Ethics Committee voted 18-0 to approve Florida Bar Staff Opinion 38049. It permits the inquiring attorney to post a limited response to a negative online review that the attorney says falsely accuses her of theft.
In a memo endorsing the opinion, Committee Vice-Chair Thomas Young said the problem appears to be getting worse.
“The circumstances addressed in this opinion are growing more frequent,” Young wrote. “Florida lawyers, especially young lawyers, may benefit from this opinion.”
Bar rules protect the identity of members who request ethics opinions. According to Bar records, the attorney felt compelled to respond to a former client’s online review that the attorney says falsely claims she, “took the money and ran.”
Citing Texas Ethics Opinion 662, the attorney asked Bar counsel if she could post that the, “court entered an order authorizing her to withdraw as counsel.”
But the Bar ethics counsel determined that the post would reveal too much information without obtaining the former client’s consent. The Bar counsel cites the comment to Florida Bar Rule 4-1.6.
“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.”
Exceptions to the confidentiality rule are rare and generally apply to situations where the attorney is being compelled by a court or defending himself or herself in a formal disciplinary proceeding.
The Bar ethics counsel notes that Texas opinion allows a “proportional and restrained” response that does not reveal confidential information. The counsel recommends language contained in the Texas opinion:
“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.”
In 2014, the Bar Association of San Francisco advised an attorney that she could respond to an online review that accused her of incompetence, failing to communicate properly, mismanaging the case, and providing sub-standard advice, among other charges.
But the response should be limited, according to the opinion.
“An attorney is not ethically barred from responding to an online review by a former client where the former client’s matter has concluded,” the opinion states. “However, the duty of confidentiality prevents the attorney from disclosing confidential information about the prior representation absent the client’s informed consent or waiver of confidentiality.”