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Advisory opinion addresses how best to respond to online criticism

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laptopAfter approving a revised proposed advisory opinion about responding to negative online reviews by current or former clients, the Professional Ethics Committee is asking the Board of Governors to instruct it to take a broader look at online criticisms.

Several committee members said they’re concerned about whether there’s clear direction on how lawyers can respond not only when current or former clients post criticisms, but also when attacks come from non-clients and other attorneys.

So, at its October 9 session during the Bar’s Fall Meeting, the committee amended and approved PAO 20-1 and also asked the board to request the PEC draft a wider opinion to look at responding to negative reviews from non-clients. The committee also voted to look at amending Rule 4-1.6 and report back at the committee’s January meeting.

PAO 20-1 came from a lawyer seeking guidance on responding to a negative online comment posted by a former client. The attorney wanted to know if any response could include truthful information, including that a judge had approved the attorney withdrawing from representing the former client.

The opinion, in line with other states’ findings, said the attorney could not reveal confidential information about the representation, even if it was in the public record. It noted that Bar Rule 4-1.6 allows only disclosure of information without client consent in limited circumstances, including when there is a controversy with the client.

The proposed advisory opinion concluded that any response to the online criticism by the former client would have to be general such as the lawyer disagrees with the comments, could not reveal confidential information without the client’s consent, and could not reveal the court’s withdrawal order unless the client had given informed consent.

The opinion, as approved by the committee, noted a suggested general response in a Texas ethics opinion on the subject. At its meeting, the committee amended the opinion and went on to suggest another alternative: “As an attorney, I am constrained by the Rules Regulating The Florida Bar from responding in detail, but I will simply state that it is my belief that the [comments/post] present neither a fair nor accurate picture of what occurred and I believe that the [comments/post] [is/are] false.”

Committee member Lanse Scriven asked if lawyers could reveal confidential information under one of the six exemptions listed in Rule 4-1.6 to establish a defense in a “controversy” with the client.

Several states have looked at that question, Bar Ethics Counsel Elizabeth Tarbert said, “and most have agreed this just doesn’t rise to the level of a controversy. A controversy would be an actual charge that the lawyer violated the Rules of Professional Conduct or engaged in an illegal activity.”

She also said precedents have held even matters in public records cannot be used, much less revealed unless they are generally known and are considered confidential if the lawyer would not have known about them except for representing the client.

Scriven said the rule was written before the age of instant online reviews, which can be rapidly disseminated.

“This [PAO 20-1] is a good first step, but I think the rule needs to be looked at more carefully because this rule does not match the reality of our environment,” he said, adding the rule also prevents lawyers from addressing comments from people they haven’t represented.

Committee member Tim Chinaris said such reviews could rise to the level of a controversy “depending on the level of the allegations. If somebody says, ‘I didn’t like the attorney’ or ‘I didn’t like the way the attorney talked to me,’ that’s one thing. But if in some of these cases where the attorney is accused of a crime or serious violations of the ethics rules like overcharging, I think the client at that point has opened the door to a limited, measured response, even if it involves information about the case, because the client has now put it in controversy [by the posting]. We shouldn’t do a one-size-fits-all opinion because it’s going to depend on the nature of the allegation.”

“I think that we’re really doing the lawyers a disservice by essentially saying that they’re not able to defend themselves with truthful information so long as they’re not disclosing confidential information,” said committee member Stephanie Lisiecki. “They should be able to respond that the post…is not factual, is not based in truth, and they should be able to tell what the truth is…. If the poster says the lawyer sucks and missed all of the deadlines, that lawyer should be able to state, ‘The poster of this is no longer a client of mine, however it is untrue that I missed the deadlines and public records can affirm that as truthful.’”

Following the PEC vote, PAO 20-1 will become final unless one of three lawyers who filed comments to the PEC about the opinion appeals it to the Board of Governors. Those lawyers objected to the opinion because it hampered the ability to use truthful information in defense, did not address online comments from non-clients, and could infringe on commercial free speech protected by the First Amendment.

As this story was published, the opinion had not been appealed to the board.

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