Ethics panel addresses replying to online criticisms from non-clients
Opinions on using online payment services, emergency guardianships are final
Lawyers may respond to online criticism from people who are not and have not been clients but in doing so they must take care not to reveal protected information about current or former clients.
The Bar’s Professional Ethics Committee is giving that advice in Proposed Advisory Opinion 21-1, which is being published for Bar member comment. The committee voted 33-0 at its June 10 meeting at the Bar Annual Convention to approve and publish the opinion.
The committee also heard that two other proposed opinions — covering accepting payments via online payment apps and representing alleged incapacitated persons in emergency guardianship hearings — and a revised ethics opinion have become final. The committee also received an update on a rule amendment it proposed, which also addresses lawyers responding to criticism and which is pending before the Board of Governors.
Committee member Lanse Scriven co-chair of the subcommittee working on Proposed Advisory Opinion 21-1, noted the committee last year approved Ethics Opinion 20-1 which offers advice to lawyers when responding to online criticism from current or former clients.
“This opinion deals with reviews by nonclients,” he said. “There was one tweak we made to the opinion which was to give lawyers a little more guidance to what they can say in response to those reviews….
“Even though we’re dealing with non-clients or former clients, the lawyer still has to abide by the obligation not to reveal any confidential [client] information under Rule 4-1.6. Even though it’s a non-client, Rule 4-1.6 still trumps.”
The change added language to the proposed opinion that if a lawyer is constrained in responding to a non-client’s criticisms because of the danger of revealing protected information, the lawyer can say, in addition to noting the critic is not a current or former client, “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.”
The opinion concludes that lawyers must consider Rule 4-1.6 on protecting client confidences when responding to the third-party criticisms so that no protected information is revealed.
“A lawyer may respond in a way that does not reveal confidential information about a client or former client,” the opinion said. “If true, a lawyer may respond that the poster is not a client or a former client.”
The proposed opinion will be published on in the printed edition of the Bar News and is online here.
On other matters, the committee heard:
• The Board of Governors at its July 23 meeting will consider on first reading an amendment adding a subsection (c)(7) to Rule 4-1.6 which governs exceptions to requirements to protect client confidences. The new subsection allows an exception to “respond to specific allegations published via the internet by a former client (e.g. a negative online review) that the lawyer has engaged in criminal conduct punishable by law.” The proposed comment adds, “However, under subdivision (f), even when the lawyer is operating within the scope of the (c)(7) exception, disclosure must be no greater than the lawyer reasonably believes necessary to refute the specific allegations.”
• Proposed Advisory Opinion 21-2 became final when no Bar member filed an objection following the committee’s approval in March. The opinion says lawyers may accept payment including funds to be held in trust from web-based payment services, such an Venmo and PayPal, as long as the lawyer takes reasonable steps to ensure the transaction is confidential, that trust funds are promptly transferred into trust accounts, and that transaction fees or chargebacks are not assessed against trust funds, unless the client agrees. The final opinion can be found online here.
• Proposed Advisory Opinion 21-3 has become final because no comments were filed after the committee approved it in March. The opinion gives advice to attorneys who are appointed to represent alleged incapacitated persons in emergency guardianships when the attorney has no opportunity to meet with the client before the hearing. The opinion concluded that the attorney could proceed but “still must investigate as reasonably practicable under the circumstances, cross examine the petitioner’s witnesses, test the petitioner’s evidence, present any appropriate testimony or other evidence found during investigation, ensure that the petitioner proves all essential elements of the guardianship, protect the client’s procedural rights, and, if the hearing is held ex parte, that the petitioner has met the burden of establishing the necessity of the ex parte proceeding under the statute. The inquirer must then notify the client of the proceedings and their outcome.” The final opinion is online here.
• Changes to Ethics Opinion 88-11 are final after no member filed comments following the committee’s approval in March. The opinion says lawyers may charge for retrieval of documents and information and for copying costs. The opinion generally found that clients and former clients are entitled to their own property such as original documents they provided to the lawyer, documents provided to a tribunal, executed documents prepared for the client, correspondence necessary to protect the client’s interest, electronic data including documents and records necessary to protect the client’s interests, discovery paid for by the client, legal opinions issued at the client’s request, and billing statements. Clients, the opinion said, are not entitled to confidential information about other clients, internal administrative information, drafts or unexecuted copies of documents, consultations regarding malpractice or ethics, or internal memoranda and research materials. The final revised opinion is online here.
