Committee debates how lawyers can respond to getting slammed online
How lawyers can respond to online criticisms — both from clients and third parties — is being examined by the Professional Ethics Committee.
The committee, at its January 14 meeting as part of the Bar’s Winter Meeting, heard a report from a subcommittee looking at amendments to Bar Rule 4-1.6 on whether rule changes are needed to govern how lawyers may respond to online criticism from clients. The PEC also voted to ask that subcommittee to work on an ethics advisory opinion to counsel lawyers on responding to digital criticisms that come from non-clients.
The committee also heard that Ethics Opinion 20-1 has become final. That opinion also addresses responding to online criticism from clients and held that lawyers could not reveal information relating to the representation “but may respond with a general statement that the lawyer is not permitted to respond as the lawyer would wish, but that the online review is neither fair nor accurate.”
The committee finished working on that opinion in October, and it became final when it was not appealed to the Bar Board of Governors. The committee also decided at that meeting to propose a rule amendment on that issue.
Lanse Scriven
Committee member Lanse Scriven, co-chair of that rules subcommittee, said Bar rules and ethics policies were designed before the internet age. The rules allow disclosing client confidences only as part of a grievance case, to defend a malpractice action, or to defend a criminal charge.
“There is now [another] forum where clients raise grievances and probably, I think, with more frequency and this is online criticism in different social media platforms,” Scriven said. “Our view…is online criticism does not fall squarely within those three exceptions, so we have proposed an exception.”
The subcommittee presented two options, which Scriven said the panel would continue to work on, for Rule 4-1.6. While Ethics Opinion 20-1 allows only a nonspecific response, both rule options would create an exception to disclosing confidences to respond to “specific allegations published by the client regarding the lawyer’s representation of the client” in one version, or in the second, to respond to a client’s allegations “regarding the lawyer’s representation of the client or the lawyer’s character, ethics, or professionalism.”
The subcommittee also suggested a new comment for the amendment, which says that the new rule “allows a lawyer to respond in [an online/a public] forum to specific allegations published by the client regarding the lawyer’s representation of the client [or the lawyer’s character, ethics, or professionalism]. This allows a lawyer the ability to respond to negative online reviews posted by a client or former client. However, under subdivision (f), even when the lawyer is operating within the scope of the [proposed] (c)(7) exception, disclosure must be no greater than the lawyer reasonably believes necessary to refute specific allegations. There is no exception in rule 4-1.6 that allows a lawyer to disclose information relating to the client’s representation in response to specific or general allegations regarding the lawyer’s conduct contained in an online review from a third party such as an opposing counsel or anyone who is not a client or former client.”
“There may be some more refinements needed. I understand there is certainly a concern we don’t want to open this up where lawyer grievances are aired online,” Scriven said. “We do know this is becoming an increasing problem and I think one that lawyers are really in a position where they can’t defend themselves. We think in limited instances, the lawyer should be able to respond appropriately.”
It’s also important because more and more people rely on online reviews for a wide variety of activities — including hiring lawyers, he said.
Committee member Skip Smith said the issue presents a balancing of interests between protecting lawyers’ reputations and preventing an overreaction to bad online reviews.
“Are we inviting a war of words that could spin out of control? I fear that ‘specific allegations’ [in the amendment draft] can be widely interpreted,” he said. “You may encourage lawyers to respond when the better practice may be to not respond.”
The possibility of lawyers frequently striking back at former clients in online forums might discourage some people from seeking legal help and undermine the legal system, Smith said, adding, “I think we should be very cautious about opening this door.”
“Often the better response here is for the lawyer to stay away from engaging in a public dispute,” said committee member Tim Chinaris, the other co-chair of the subcommittee. “But there are times when things are so false and misleading, it does bring up more than just being about the lawyer. A lot of people do look at those [online reviews] and that’s a societal interest to have accurate information.”
Judge Robert McCune likened the situation to judicial recusals. If the allegations contained in recusal motion are sufficient, the judge is required to recuse, without addressing whether the claims are true.
“It could be the most unfair situation in the world, but that’s what we’re required to do for the institution, for the sake of the process,” he said. “If that door is opened [on responding to online comments], it’s going to be a terribly slippery slope.”
Committee member Leslie Kroeger said she favored giving lawyers some leeway, even if it’s only to post a “canned” response that ethical rules prevent them from giving a detailed reply.
Scriven said the subcommittee hopes to have a final rule amendment for the PEC’s June meeting.
The PEC voted to set up the subcommittee to examine the rule in October, when it gave final approval to Ethics Opinion 20-1.
At that meeting, the committee also requested, pursuant to Bar rules, that the Board of Governors instruct the PEC to draft an ethics opinion addressing “the ethical obligations of a lawyer in responding to negative online posts by a person other than a client….”
The board subsequently approved that request and the committee, without discussion, voted to refer that to Scriven and Chinaris’ subcommittee, which will report at the June meeting.
