Ethics opinion addresses responding to online criticism from nonclients
Florida lawyers now have guidance on how to respond to negative online reviews posted by those who are not current or former clients — keep it brief, factual, and don’t reveal information concerning a client’s representation without the client’s informed consent.
That’s the advice from recently approved Ethics Opinion 21-1 that was adopted by the Board of Governors in December.
“If accurate, the lawyer may state that the person who made the post is not a current client or former client,” the opinion, put forth by the Professional Ethics Committee, reads. “The lawyer may generally note that the comments in the review are inaccurate but that the lawyer’s response is constrained by the lawyer’s ethical obligations.”
The PEC had been asked by the Board of Governors to give an opinion on responding to negative online reviews posted by individuals that are not clients or former clients after the earlier adoption of Ethics Opinion 20-1, which discusses a lawyer’s response to a client or former client’s negative online review.
Ethics Opinion 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.
That 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 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, and could not reveal confidential information without the client’s consent, even if it is part of the public record.
That raised questions about responding to those who are not or have never been a client since often a third party who is close to the client or former client will post a negative review about the lawyer and, occasionally, someone who lacks a connection even to the lawyer will post a negative review.
Ethics Opinion 21-1 notes Rule 4-1.6(c) explains when a lawyer may reveal confidential information and the comment to the rule reads: “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.”
Ethics Opinion 21-1 says if a lawyer wants to respond to a negative online post by someone who is not a client or former client, the lawyer must still determine whether the response reveals confidential information about a client.
“If true, a lawyer may respond by stating that the person posting is not a client or former client. A lawyer may also state: ‘As a lawyer, I am constrained by the Rules Regulating The Florida Bar in responding, but I will simply state that it is my belief that the comments are not accurate,’” according to the opinion.
Advisory ethics opinions are not binding.
The Professional Ethics Committee has also proposed a rule amendment that would give lawyers a narrow opportunity to respond to negative online reviews.
Proposed amendment to Rule 4-1.6 (Confidentiality of Information) would add a subsection (7) to subsection (c), “When a Lawyer May Reveal Information” that would allow lawyers to respond to online criticisms from former clients — but only if those clients alleged a lawyer committed a prosecutable criminal offense.
“The Professional Ethics Committee feels this strikes an appropriate balance regarding concerns of lawyers that negative online reviews that are not truthful are proliferating and creating reputational issues for lawyers, and the lawyer’s obligations to preserve confidential information relating to a client’s representation,” according to a staff analysis.
A proposed comment to the suggested new rule notes that even when making use of the subsection, “disclosure must be no greater than the lawyer reasonably believes necessary to refute the specific allegations.”
The Board of Governors approved the change in December and it will go to the Supreme Court for consideration in the Bar’s next regular rules petition.
