ICYMI: American Bar Association Formal Ethics Opinion on Responding to Online Criticism

Many legal professionals struggle with the appropriate response to negative comments or poor online reviews. The American Bar Association Standing Committee on Ethics and Professional Responsibility recently released an ethics opinion addressing the ethical implications of such a response.

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Lawyers are not strangers to online criticism and are faced with a unique set of ethical concerns when evaluating the proper response to online posts that are uncomplimentary, inaccurate, or untrue. While lawyers should refer to the ethical rules of their state bar association for definitive guidance on the ethical implications of responding to a negative online review, the American Bar Association Standing Committee on Ethics and Professional Responsibility recently released Formal Opinion 496 to generally address this issue.

Do Not Share Client Info: Negative Reviews Are Not Attorney-Client Controversies

A lawyer’s primary ethical concern when responding to online criticism should be maintaining the confidentiality of client information, as per Rule 1.6 of the ABA Model Rules of Professional Conduct. While some exceptions exist to the general rule binding lawyers to maintain the confidentiality of information relating to the representation of a client, the Committee concluded that those exceptions were inapplicable to the case of a negative online review.

Instead, the Committee indicated that a negative review alone, due to its informal nature, does not rise to the level of a controversy between the lawyer and the client that would permit the lawyer to divulge information relating to the representation as a defense. Moreover, the Committee stated that even if a negative review were to be considered a controversy, the disclosure of information relating to the representation of a client in a public response would be unwarranted.

The Committee’s Suggested Best Practices

While the rules on how a lawyer may actually respond are likely to vary from state to state, the Committee did offer several suggested best practices and considerations for lawyers who find themselves faced with unpleasant online criticism. Notably, the Committee did indicate that the best practices are not intended to cover every possible scenario, but instead provide a framework for independent analysis of the appropriate course of action.

As a first suggestion, the Committee indicated that an attorney may simply ask the search engine or website host to remove the negative post. If the person who has made a negative comment was not your client, you may share that information in your removal request. However, if the negative review comes from a former client, you cannot reveal information that is related to the representation or that could reasonably lead to the discovery of confidential information in your removal request. Nonetheless, if the post is inaccurate, you may simply state this in your request to the search engine or website host.

As a second option, the Committee urges lawyers to consider simply adopting a policy of not responding to any negative online reviews. While a stale complaint may gradually fade away from the search engines, the Committee cautions that one being actively updated and expanded may boost search engine rankings and attract increased public attention.

Should you determine that silence is not the best approach for your practice, the Committee offers some alternatives to contemplate. For example, the Committee advises attorneys to move the dispute offline by asking the authors of any negative reviews to contact you directly to discuss their concerns.

If the negative poster is not your former client, you have no ethical obligation to that individual. Therefore, you could respond by stating that the person was not a client. However, the Committee recommends that any lawyer adopting this approach proceed with caution when offering any further response so as to avoid inadvertently sharing confidential information relating to the representation of a person who was indeed the lawyer’s client. As an example, if the negative post was made by a friend or family member of your former client, responding with a general disclaimer that the comment is inaccurate could be interpreted as sharing information concerning the representation of that client.

If the online criticism is coming from a former client, you should not respond online except to say that your professional obligations prevent you from responding as you would like. You may choose to contact that former client directly to discuss the issue. However, if you have a dispute with a former client, it may be advisable to discuss your intended response with counsel first.

What Now?

From a business perspective, entirely ignoring negative online reviews is contrary to conventional marketing wisdom. While the Committee’s opinion makes it clear that lawyers must proceed with caution when responding to online reviews, it does not forbid all responses. Instead, lawyers should familiarize themselves with the ethical rules in their jurisdiction and ensure that any response given complies with all pertinent provisions.

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