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PEC tackles knotty issues of responding to online criticism

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Proposed rule, opinion look at comments from former clients and third parties

EthicsFollowing up on the earlier adoption of an ethics opinion on responding to clients’ online criticisms, the Professional Ethics Committee is now addressing a Bar rule change on responding to former client online comments and another proposed advisory opinion on comments from third parties who are not clients or former clients.

At its March 23 meeting, the committee approved a proposed amendment to Bar Rule 4-1.6 (Confidentiality of Information) and will send that to the Board of Governors. The amendment addresses a limited exception to allow lawyers to respond to online criticisms from former clients if those clients alleged a lawyer committed a prosecutable criminal offense.

The committee also worked on Proposed Advisory Opinion 21-1, which would say lawyers could respond to criticisms from third parties who are not former or current clients as long as they don’t reveal any client confidences. Committee members indicated support for the proposed opinion but sent it back to a subcommittee to add specific safe harbor language.

The PEC had asked the Board of Governors, in the wake of the adoption of Ethics Opinion 20-1, to direct it to draft both the rule amendment and the proposed advisory opinion, which the board did in December.

Ethics Opinion 20-1 addressed an inquiry from a lawyer about how to respond to a client who said in an online review that the lawyer “took her money and ran.” The opinion holds the lawyer may not say the court approved the lawyer’s withdrawal from the case or otherwise respond specifically, but could say the client did not portray events accurately or that that lawyer disagrees with the claims in the review.

The proposed amendment to Bar Rule 4-1.6(c) (Confidentiality of Information) would add a seventh subsection that would allow a lawyer to reveal confidential information to the extent a lawyer “reasonably believes” is necessary 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 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.”

Committee members Tim Chinaris and Lanse Scriven, who co-chaired the subcommittee that drafted both the rule amendment and the proposed advisory opinion, said the rule was drafted as narrowly as possible to comply with the broad interpretations of Rule 4-1.6. That limited it to online criticisms by former clients who alleged a prosecutable criminal act by the lawyer.

“We limited the exception to former clients, commenting on matters about that former client. We believe duties of loyalty to a current client would preclude the lawyer from publicly responding during a representation, at least without specific consent of the client,” Chinaris said. “….We also limited it to allegations of criminal conduct punishable by law, because again trying to make sure the exception would be used only in cases of really serious allegations, accusing a lawyer of theft or child abuse or some horrible type of crime. That’s where we think the spirit of that exception would be.”

“If somebody posted a negative review saying the lawyer took her money and ran, would we now be able to respond to that as that’s…a criminal allegation?” asked committee member Robert Borr.

“If the comment is one that could be prosecuted, the lawyer would be free to respond” to a former client, said Scriven.

While the rule change addresses online claims from former clients, Proposed Advisory Opinion 21-1 addresses a third type of online criticism — from third parties who are not current or former clients.

In those cases, Chinaris said the subcommittee found that the lawyer owes no duty of confidentiality under Rule 4-1.6 to that third party and can respond — as long as no details about current or former cases are revealed. That can be difficult if the third-party criticism relates to a current or former client.

“A lawyer may not respond to a negative review by a nonclient in a way that reveals any information about a client or former client,” Chinaris said. “There are times even revealing you are representing a client may not be disclosed.”

“One of the underlying threads in all this is what is confidential and the fact of representation is going to be confidential unless that is a matter of general public knowledge,” said committee Chair Michael Gelfand.

Bar Ethics Counsel Elizabeth Tarbert said the Rule 4-1.6 is read expansively when it comes to protecting client information.

“The fact something is in the public record does not make it generally known, because most people don’t know where to go look for it,” she said, and that means lawyers have an obligation to protect that information.

“I look at the opinion as being guidance. We’re not going to be able to draft an opinion that addresses every nuance,” Scriven said. “This does give lawyers some substantial guidance because now there is none. This goes about as far as we can.”

Committee members generally said they like the proposed opinion, but said they would like to see some general, safe harbor language that would allow the lawyer to contest the online accusation without revealing any client confidences. The committee voted to ask the subcommittee to suggest such language.

As drafted, Proposed Advisory Opinion 21-1 notes that lawyers have no ethical duties to third party critics but also cited ABA Formal Opinion 496, which noted those critics may be friends or relatives of current or former clients.

The ABA opinion went on: “[T]he lawyer may not disclose any information relating to the client or former client’s representation without the client or former client’s informed consent. Even a general disclaimer that the events are not accurately portrayed may reveal that the lawyer was involved in the events mentioned, which could disclose confidential client information.”

It also said the lawyer can seek client or former client’s informed consent to respond, particularly if the response would be in the client or former client’s best interest.

The Bar proposed opinion concluded lawyers must still consider Rule 4-1.6 when responding and must not reveal client confidences. The lawyer may respond, if true, that the person posting commentary online is neither a current nor former client.

The approved rule amendment, which passed the PEC 35-0, will go to the Bar Board of Governors for its consideration. The committee will consider revisions to Proposed Advisory Opinion 21-1 at its June meeting.

After the meeting, Gelfand, the PEC chair, said the discussions illustrate how the Bar is adapting to changes in the electronic world, and said future evolutions could spark further reviews.

“When most of us became lawyers, we did not anticipate the vitriol we see online, and now we have to adjust our practices and rules to meet it,” he said.

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