Negative Online Client Reviews: ABA Gives Some Tips for Responding

Preface by Bruce Hennes, Hennes Communications

Last week, writing in Law for Lawyers, a publication of the Thompson Hine law firm, our friend Karen Rubin wrote about how attorneys should deal with negative online reviews.  We’ve taken the liberty of adding this preface to her excellent article:

When considering a response to a negative lawyer or law firm review (or a negative review against any other organization or company), the first step should be an assessment of the impact of the offending comment.  Questions to ask include:

• If the comment was posted on a website, how influential is that website?  How many people will likely see it?  Example:  A negative comment on a small, neighborhood blog that’s seen by few people is one thing.  That same comment on the blog of a newspaper or TV station seen by thousands of people is something different.
• Is it getting shared?
• Is it being repeated on other review sites?
• Does the person posting the negative review have much influence or standing? (i.e. do they have many online followers or friends).
• Is it fueling other negative comments, particularly on Facebook?
• Does it have staying power or legs – or did the review quickly fade from online discussion?

We think those answer must guide the strategy.

And now, on to Karen Rubin’s article:

Here’s a newsflash:  you can’t defend yourself against a client’s bad online review by revealing client confidential information, as the ABA Ethics Committee reminded us in an opinion last week.

We’ve recently reported on the Oklahoma lawyer who was disciplined for his rogue consultant’s conduct in connection with an online review; a New Jersey lawyer who was disciplined for responding to a client’s online review by posting a bad Yelp review of his own, which revealed client information; and a Massachusetts lawyer who was disciplined for disclosing client information on Facebook.

No “self-defense”

If these cautionary tales were not enough, the ABA now has removed all doubt, with its guidance that the “self-defense” exception to the duty of confidentiality does not support revealing client information in response to an online review.

Model Rule 1.6(a), adopted in some form in all U.S. jurisdictions, bars disclosing “information relating to the representation of a client.”  That’s a very broad prohibition, and of course covers much more territory than just information that would come under the attorney-client privilege.

What the ABA has now made crystal clear is its view that the confidentiality exception expressed in Model Rule 1.6(b)(5) does not apply here.  The “self-defense” exception covers three situations that can entitle you to disclose otherwise-confidential information:

For the rest, click here.