Proposal would provide guidance for responding to negative online reviews alleging criminal conduct
The Board of Governors is considering a Professional Ethics Committee proposed rule amendment that would give lawyers a narrow opportunity to respond to negative online reviews.
The proposed amendment to Rule 4-1.6 (Confidentiality of Information) appeared on first reading on the board’s July 23 agenda.
Board Review Committee on Professional Ethics Chair Wayne Smith urged board members to review the language closely before the next board meeting.
The amendment 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 Review Committee voted 11-0 in May to recommend the proposal. The board could take final action as early as September. The proposal would go next to the Supreme Court for final determination.
Professional Ethics Committee members Tim Chinaris and Lanse Scriven co-chaired a subcommittee that drafted the proposal.
At the March meeting, they told the committee that the language was drafted as narrowly as possible to comply with a broad interpretation of Rule 4-1.6.
Chinaris said the subcommittee limited the exception to former clients because the panel believed a lawyer’s duty of loyalty to current clients would prohibit responding to their online criticism, at least not without the current client’s consent.
“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,” Chinaris said. “That’s where we think the spirit of the exception would be.”
The rule follows up on Ethics Opinion 20-1 that 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 that the lawyer may not say the court approved the lawyer’s request to withdraw from the case, or to otherwise respond specifically, but could say the client did not portray events accurately, or that the lawyer disagrees with the claims in the review.
After Ethics Opinion 20-1 was adopted, the board directed the committee in December to draft the proposed rule amendment — and another proposed ethics opinion dealing with online criticisms from third parties who are not current or former clients.
Proposed Ethics Opinion 21-1, notes that a lawyer owes no ethical duties to a person who is not a client or former client. But it states, in part, “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.”
The proposed opinion also refers to ABA Formal Opinion 496, which states, in part, that “a lawyer must use caution in responding to posts from nonclients.”
Proposed Ethics Opinion 21-1 was publicly noticed on the Bar News website June 28. Public comments are accepted until August 31 and will be considered by the Professional Ethics Committee when it convenes in October for the Fall Meeting.
