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Lawyers Itch to Fight Online Flaming With Ethics Rules Saying No

April 7, 2020, 8:51 AM

When businesses or hotels get hit with negative reviews on Yelp, Google or other social media sites, they can fire back. Or have their lawyers do it for them.

But when lawyers themselves are the targets, ethics rules prohibit them from posting responses that are inflammatory or reveal confidential information about the client who posted the review. The American Bar Association Model Rule 1.6 prohibiting attorneys from revealing client confidences has some exceptions when defending themselves in a dispute, but it doesn’t apply to online reviews.

With more attorneys seeking reviews to build their practices, and also itching to be able to respond to bad ones, some state bars have issued or are considering ethics opinions that give lawyers some leeway—if not much.

“Lawyers are frustrated by the inapplicability of the rule,” said Jan L. Jacobowitz, director of the University of Miami School of Law’s Professional Responsibility & Ethics Program. She is also president of the Association of Professional Responsibility Lawyers.

The jurisdictions that have addressed responding to negative reviews, including Texas, Pennsylvania, Colorado and New York, agree that lawyer responses to online reviews should be restrained and that they can’t reveal client confidences. Florida and North Carolina are the latest states to take a fresh look at their rules.

The Pennsylvania Bar’s opinion said that while it’s understandable that lawyers would want to respond to a negative review, they have to keep all information regarding the representation confidential, even for an “ungrateful client.”

It proposed a model response an attorney could use without violating ethics rules: “A lawyer’s duty to keep client confidences has few exceptions and in an abundance of caution I do not feel at liberty to respond in a point-by-point fashion in this forum. Suffice it to say that I do not believe that the post presents a fair and accurate picture of the events.”

The opinion from Texas notes that other service providers “are relatively free to respond to negative reviews as they see fit,” but lawyers are limited in their responses. A lawyer asked the bar’s ethics committee if it was OK to post a response that included “only enough information to rebut the allegedly false statements.”

The bar said a “proportional and restrained response” that doesn’t break any client confidences or other ethics rules is permissible.

Defamation Suits

A lawyer in Colorado was suspended for 18 months in 2015 after he “publicly shamed” a couple “by disclosing highly sensitive and confidential information gleaned from attorney-client discussions,” on Yelp, the Colorado Supreme Court’s opinion said.

Attorney James C. Underhill Jr. was hired by a married couple to help with the husband’s ongoing dispute with his former spouse, the court said. They got into a fee dispute, however, after Underhill charged them $200 for a filing fee that wasn’t incurred and he refused to return it. After terminating the relationship, the couple posted a review of their experience, according to the Colorado court.

Underhill responded to the post and then sued them for defamation. When they offered to take down the review if he would withdraw the suit, he refused and consequently began communicating with them directly, despite knowing they had an attorney, the Colorado Supreme Court’s opinion said. The first suit was dismissed and he brought another defamation case, which was also dismissed.

The suspension was imposed for breaching confidentiality, not for communicating with the couple via their lawyer, and for bringing frivolous proceedings.

Underhill argued that he didn’t realize the couple’s attorney was representing them for settlement purposes, but the court didn’t find his defense “persuasive.”

In one ongoing lawsuit in Pennsylvania, an attorney is suing a former client for what he alleged is a defamatory review on Google that caused him to lose business opportunities.

Jason Depp hired Robert E. Mielnicki to advise him on whether insurance would cover his costs in a case where he was accused of assault. Depp eventually fired Mielnicki, and in February 2019 posted the first negative review on Google, according to Mielnicki’s lawsuit.

Mielnicki sued Depp in a Pennsylvania court of common pleas in September 2019. His complaint says that Depp keeps editing the alleged defamatory review so that it’s the newest review, making it “nearly impossible” to escape the harm of the review. Mielnicki calls Depp a “cyberstalker.” Depp couldn’t be located for comment.

‘Streisand Effect’

John G. Browning, a partner with Spencer Fane in Plano, Texas, who helps professionals protect their business reputations, said he rarely advises clients to file defamation suits.

Individuals are likely to be judgment proof, meaning the attorney will never be able to collect on a win, and the First Amendment protects many kinds of speech, he said.

Another reason defamation suits aren’t that popular is the “Streisand effect,” Jacobowitz said, of entertainer Barbra Streisand’s attempt to suppress images of her California home that only resulted in more attention being drawn to them. By trying to remove the bad review, a suit will only bring more attention to it.

Negative reviews have lawyers “so freaked out” that many want to include provisions in their retainer agreements that if they have a dispute with the client, prior to going online, the client will discuss it with the lawyer, said Brian L. Tannebaum, who practices law in Miami and represents lawyers in ethics matters before the state bar.

But he advises against that.

“I think it’s a terrible thing to do,” Tannebaum said. “You’re alerting a potential client that this is something you’re sensitive to and there’s no reason to do that.”

Rules for Internet Age

Some lawyers are pressing their state bars to revisit their rules on revealing client confidences.

Florida’s Rule 4-1.6, for example, was written before the age of the internet and social media, said Lanse Scriven, a disciplinary defense lawyer in Tampa and a member of the Florida Bar’s Professional Ethics Committee. The rules need a “fresh look” in today’s legal environment, which has changed with regard to how clients find and interact with lawyers, he said.

Lawyers have starting asking for reviews because they realize it’s important to have them, Tannebaum said., Yelp, and Google are some of the more popular sites that consumers use to post lawyer reviews.

“It’s a two-way street,” he said. “It’s important for the lawyer and it’s important for the consumer.”

According to Clio’s 2019 Legal Trends Report, 57% of people looking for an attorney looked on their own and didn’t use a referral. Seventeen percent of them used a lawyer’s website; another 17% used an online search engine; and 8% used online reviews. Lawyers don’t adapt to those trends “will miss out on expanding their opportunities for finding new clients,” the report said.

The study also found that younger generations are more likely to care about a firm’s online reviews. That makes it vital to be careful with responses, Jacobowitz said.

Browning advises attorneys pondering a response to remember they’re not just communicating one-on-one, but instead to “an unknown number of people.”

You can come across as responsible, or as a jerk, he said. A responsible attorney might post a responsive, empathetic reply to the poster, explain the ethical limitations, and invite that person to have an offline conversation, Browning said.

He and Jacobowitz agree that when readers see this kind of responsible response, it can be a positive marketing experience.

One thing that’s important to remember when you get a bad review is that the internet isn’t the “Wild West,” Browning said. We can’t allow ourselves to “sink down to some anonymous critic’s level.”