Appellate Court Strikes Down Award of Attorney Fees

• Author: Benjamin E. Long
• Pages: 8-8

Published in Litigation News Volume 47, Number 3, Spring 2022. © 2022 b y the American Bar Ass ociation. Reproduc ed with permission. A ll rights reserv ed. This information or an y portion there of may not be copied or dis seminated in any

form or by any means or sto red in an electronic da tabase or retrieval sy stem without the ex press writt en consent of the Amer ican Bar Associatio n.

awyers receiving a negative online

review now have additional guid-

ance for deciding whether or how

to respond. In Formal Opinion

496, the ABA Standing

Committee on Ethics and Professional

Responsibility sets forth best prac-

tices for attorneys to address criticism

while fulf‌illing ethical duties to clients.

ABA Litigation Section leaders cau-

tion that there is no one-size-f‌its-all

solution, however.

ABA Model Rule of Professional

Conduct 1.6 generally prohibits attor-

neys from disclosing any information

relating to a client’s representation

or that could lead to the discovery of

conf‌idential client information without

client consent unless an exception to

the rule applies. Rule 1.6(b)(5) allows a

lawyer to disclose conf‌idential informa-

tion “to establish a claim or defense on

behalf of the lawyer in a controversy

between the lawyer and client” or in

response “to allegations in any pro-

ceeding concerning the lawyer’s repre-

sentation of the client.” The committee

concluded that a negative online review

was not a “controversy” under Rule

1.6(b)(5) due to its informal nature and

that “a public response [would] not be

reasonably necessary” to establish the

lawyer’s claim or defense.

The committee suggested several

courses of action that would comply

with the duty of conf‌identiality. First,

lawyers “may request the host of the

website or search engine to remove

the post.” In making the request, the

committee advised, attorneys may

inform the host of certain facts, if

applicable, such as that the poster

is pretending to be a client, that the

post is inaccurate, or that the poster is

not a client. However, the committee

reiterated that no conf‌idential client

information may be disclosed without

client consent.

Second, lawyers can simply not

respond, as responding may escalate

and highlight the negative review.

How to Ethically Respond to

Negative Online Reviews

Third, the attorney may request to

take the conversation oine. The com-

mittee cautioned that the lawyer may

risk further negative posts if he or she

is unable to assuage the poster’s con-

cerns, however.

Fourth, a lawyer may respond to

reviews from nonclients by stating that

the poster has never been a client. But

if the post is from an opposing counsel

or former opposing counsel, or a for-

mer client’s friend or family member,

and it relates to an actual representa-

tion, informed client consent is required

before the attorney discloses any con-

f‌idential information. The committee

explained, “Even a general disclaimer

that the events are not accurately por-

trayed may reveal that the lawyer was

involved in the events mentioned, which

could disclose conf‌idential client infor-

mation.” Accordingly, the committee

advised attorneys “to discuss the pro-

posed content of the response with the

client or former client.”

Lastly, if the poster is a cur-

rent or former client, attorneys may

not respond online other than “to

acknowledge that the lawyer’s pro-

fessional obligations do not permit a

response.” The committee provided

the following statement as an exam-

ple: “Professional obligations do not

allow me to respond as I would wish.”

Additionally, the committee recom-

mended that lawyers seek the advice

of counsel before responding oine.

“I think the ABA’s recommenda-

tions of best practices are excellent—

f‌irms and lawyers will be better o if

they follow them,” praises Cassandra

B. Robertson, Cleveland, OH, chair

of the Appellate Subcommittee of

the Section’s Civil Rights Litigation

Committee. “When lawyers feel hurt or

threatened by a negative review, they

are not in a good position to be able to

neutrally respond,” notes Robertson.

“The ABA’s best practices are

absolutely good conf‌lict resolution

practice,” agrees David D. Moore,

By Andrew K. Rober tson, Litigatio n News Contributing Editor

Sylva, NC, cochair of the Civil Rights

Litigation Committee. “However, there

may arise some issues with applying a

broad approach to dealing with nega-

tive online reviews—there’s not a one-

size-f‌its-all solution,” Moore observes.

“One thing that must be considered

is whether the lawyer who is the tar-

get of a negative online review is a

small-town lawyer whose practice

involves domestic spats, or a big-city

lawyer who does transactional work. A

negative online review could be more

damaging to a small-town lawyer’s

reputation than a big-city lawyer's,”

cautions Moore.

Section leaders recommend that

lawyers collaborate with their f‌irm to

put together an appropriate response

that is attuned to the disgruntled

poster, if necessary. “It should be up to

the f‌irm because the f‌irm acts as a col-

lective. Any issues that the individual

attorney may have with how the f‌irm

decides to respond can be resolved

internally,” advises Moore.

“Prospective clients can be inf‌lu-

enced by online reviews, but they

don’t care about the specif‌ics of what

happened with the former client,”

Robertson adds. “Instead, they want

to see that the lawyer is caring and

responsive, and treats former clients

with respect. I recommend responding

with empathy and an invitation to dis-

cuss the matter privately,” concludes

Robertson.

RESOURCES

“ABA Issues New Gu idance for

Responses to O nline Criticism,” ABA

News (Jan. 18, 202 1).

Michael Downey, “Scruples: Responding

to Negative Onli ne Reviews,” Litig. J.

(Sept. 1, 2017 ).

Lucian T. Pera, “ Responding Intellig ently

to Negative Onli ne Reviews,” Law Prac.

Mag. (May/June 2020).

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