by Carole J. Buckner
After a client terminated her lawyer and his firm, and the firm placed a lien on the client’s recovery, disparaging postings began to appear—first on Yelp, with the initials and a photo of the client’s daughter, next an identical anonymous review appeared on AVVO, and after that negative comments appeared on Facebook under yet another name, followed by postings mirroring the Yelp review in the Ripoff Report, under yet another name, and finally on Google, in the client’s name. Abir Cohen Treyzon Salo, LLP v. Lahiji, 40 Cal. App. 5th 882 (2019). Given these postings, the law firm had to make some decisions about how to respond.
This situation sometimes faced by lawyers brings important ethical consequences because legal ethics rules constrain how a lawyer may respond. The duty of confidentiality creates a substantial constraint, as does the attorney-client privilege. Cal. Rules of Prof. Conduct, rule 1.6; Cal. Bus. & Prof. Code § 6068(e); Cal. Evid. Code § 954. The duty of loyalty to a former client, although limited, establishes another important limitation on a responding lawyer. The American Bar Association, describing the situation as a “quandary,” recently published guidance on responding to negative online postings, ABA Formal Op. 496, at 1 (2021) (“ABA 496”). Because such online postings can adversely impact a lawyer’s business and reputation, it is important to deal with them both effectively and ethically.
The preeminent consideration is the duty of confidentiality. In California this duty is sacrosanct, offering fewer exceptions than available under the ABA Model Rules. California lawyers must “maintain inviolate” the confidences of their clients, “at every peril” to themselves. Cal Bus. & Prof. Code § 6068(e); Flatt v. Superior Ct. (Daniel), 9 Cal. 4th 275 (1994). This duty survives the conclusion of the attorney-client relationship. Wutchumna Water Co. v. Bailey, 216 Cal. 564, 573-74 (1932).
The latest ABA Opinion offers a host of best practices for lawyers dealing with a negative online review. A threshold consideration is whether to respond at all. A response may trigger further negative postings, increasing harm to the lawyer’s reputation. Further activity may elevate the comments in search result rankings, while no response may eventually relegate the comments. ABA Formal Op. 496, at 3.
Faced with a damaging posting, lawyers may be tempted to respond with information from the public record to demonstrate the truth or put the statements made into context. Lawyers sometimes believe that information in the public record is not “confidential.” However, unless the former client has waived privilege or confidentiality, a reply referencing information from the public record likely violates the duty of confidentiality, “because that information is still confidential.” ABA 496, at 1. Indeed, the sweeping scope of lawyer-client confidentiality covers all information the lawyer acquires from the representation, whatever its source. Cal. Rules of Prof. Conduct, rule 1.6, comment [2]. A lawyer may not disclose his client’s or former client’s secrets, including publicly available information obtained by the lawyer during the professional relationship. Cal. State Bar Formal Op. 2016-195; In the Matter of Johnson, 4 Cal State Bar Ct. Rptr. 179, 189 (Rev. Dept. 2000) (finding lawyer’s disclosure of information in the public record violated lawyer’s duty of confidentiality).
In response to an inaccurate posting by a disgruntled client or former client, lawyers may feel attacked, and wonder what information they can disclose in “self-defense.” It is permissible to disclose otherwise privileged information in connection with a formal legal dispute between a lawyer and a client, such as litigation involving a fee dispute or a legal malpractice claim (Cal. Evid. Code § 958), or in connection with a State Bar complaint, to the extent such information is relevant to the dispute. But, the consensus of ethics committee guidance is that online reviews alone do not trigger these exceptions without a formal complaint by a client. See L.A. County Bar Ass’n Form. Opn. 525 (2012) (“LACBA 525”); Bar Ass’n of San Fran. Form. Opn. 2014-1 (2014) (“SFBA 2014-01”). The ABA agreed that even the exceptions in its version of Rule 1.6 (which are much broader than those available under California law) do not allow a lawyer to respond to a negative posting by disclosing otherwise confidential information. ABA 496.
Beyond the duty of confidentiality, a lawyer also has a “residual” duty of loyalty to a former client, which, although fairly narrow in scope, requires that the lawyer not do anything that would injure a former client in any matter in which the lawyer formerly represented the client. LACBA Op. 525. Nor may a lawyer use information the lawyer acquired in connection with the representation of a former client against the client. Wutchumna Water Co., 216 Cal. at 573-74. Even where there is a waiver of the duty of confidentiality and/or the attorney-client privilege, a lawyer may only disclose information to the extent relevant to the disclosure made by the former client and necessary to address that disclosure. LACBA 525, at 4, citing prior LACBA opinions and In the Matter of Dixon, 4 Cal. State Bar Ct. Rptr 23, 58-59 (Rev. Dept. 1999) (lawyer disciplined for making disclosure of gratuitous information about client that was irrelevant to issues pending before the court for the purpose of harassing and embarrassing the former client).
The ABA concluded with a bright-line pronouncement: “If the criticism is by a client or former client . . . [t]he lawyer may not respond online.” ABA 496, at 4. Despite this bottom line, the ABA suggests several permissible responses. A lawyer may respond by saying, “Please contact me by telephone so that we can discuss your concerns,” and “Professional obligations do not allow me to respond as I would wish.” ABA 496, at 3, 4. In response to an online posting, lawyers may contact the former client offline, and attempt to satisfy the concerns that may be expressed by their former client in an online posting, including refunding or reducing legal fees. In the wake of a breakdown in the attorney-client relationship, however, the lawyer may not get very far.
The ABA suggests that a lawyer faced with a negative review may also want to consult with counsel before responding. ABA 496, at 4. Hiring counsel to help address the concerns of the disgruntled former client may be helpful where there is no opportunity to have a civil conversation with the former client due to a breakdown in the attorney-client relationship. Separate counsel can contact the former client on behalf of the lawyer or firm, listen to the client’s concerns and attempt to negotiate a peaceful resolution to the situation by addressing any misunderstandings. Such an approach may go a long way toward bringing a disgruntled client to a place where they feel that they have been heard and that their concerns have been satisfied.
Earlier ethics opinions—including ethics opinions from California bar associations—allow more leeway for a lawyer to respond. The Los Angeles County Bar opined that an attorney may publicly respond as long as the lawyer’s response does not disclose confidential information, does not injure the client in the former representation, and is “proportionate and restrained,” meaning that the attorney must say no more than is necessary to rebut the public statement made by a former client. LACBA 525. Simply responding to the review by denying the veracity or merit of the former client’s assertions, without disclosure of confidential information, would not violate the duty of loyalty to the former client as doing so would not be likely to injure the former client in connection with the work the attorney previously did, and would not be likely to undermine such work. BASF 2014-01, at 2. An attorney may seek to mitigate the comments by stating general disagreement with the former client’s assertions and indicating that the lawyer cannot discuss confidential client matters. BASF 2014-01, at 5.
Importantly, the situation differs where the matter the attorney previously handled is not finished. Specific factual analysis would be appropriate to determine whether any contemplated response could have an adverse impact on the former client in ongoing proceedings. BASF 2014-01, at 2. Lawyers should carefully avoid any statements that could imply weakness in the former client’s case, which could be harmful to the client in the ongoing matter. Id.
Lawyers may also request that the platform hosting the opinion or search engine remove the posting. In making a take-down request, the lawyer may not disclose confidential information. A lawyer “may state that the poster is not a client, if that is the case.” ABA 496, at 3. Postings by former clients’ friends or family, or by opposing parties and their counsel require caution. As illustrated by the Abir Cohen case, a client and/or the client’s family members may post under different names. There, the firm sued not only the former client, but the daughter as well. The client had notified the firm that she shared a social media account with her daughter, and had taken responsibility for the postings. This led to a finding by the court that the firm did not have a reasonable basis for bringing suit against the daughter, and could not show the merit of such claim as to the daughter, resulting in dismissal of the case against the daughter on an anti-SLAPP motion, and an award of over $36,000 in attorneys’ fees. Abir Cohen, 40 Cal. App. 5th at 882.
Although handling online complaints can be challenging, with the most recent guidance, lawyers can successfully navigate their ethical obligations.
Carole J. Buckner is Partner and General Counsel at Procopio, Cory, Hargreaves & Savitch, LLP, and is a member of the OCBA’s Professionalism and Ethics Committee. She represents lawyers and law firms, serves as an expert witness in matters involving lawyers, represents lawyers in discipline matters, and is a mediator and arbitrator. She can be reached at carole.buckner@procopio.com. The views expressed herein are her own.