Discretion is the better part of valor: rebutting negative online client reviews.

• Author: Fucile, Mark J.

"The better part of valor is discretion!.]"

William Shakespeare

Henry IV, Part 1, Act 5, Scene 4, Lines 119-120

PUBLIC criticism of lawyers is nothing new. President Theodore Roosevelt, for example, described lawyers as "hired cunning" during a commencement address at Harvard University in 1905. (1) What is new, however, are the many digital platforms now available for disgrunded former clients to publicly broadcast their criticism of individual lawyers. (2) The criticism involved often does not rise to the level of a threatened claim--with "he is a lousy lawyer" more common than "she committed malpractice." Given the importance of web-based marketing for many lawyers today, this kind of criticism can nonetheless pose a very real problem for a lawyer's reputation in the electronic marketplace.

When confronted with such public affronts, lawyers may contemplate responses that include revealing otherwise confidential information to "set the record straight." This course, however, risks compounding the problem because the lawyer may inadvertently expose him or herself to regulatory discipline. Historically, the so-called "self-defense" exception to the confidentiality rule (3) has been applied to threatened or actual malpractice claims or bar complaints rather than simple public criticism. This leaves a lawyer with a dilemma over effectively--but "safely" (4)--rebutting negative online client reviews. This article will first survey the constraints imposed by the self-defense exception and will then turn to avenues for effectively rebutting such criticism from former clients (5) without violating the confidentiality rule. (6)

2. "Self-Defense" Is Generally No Defense

   The self-defense exception is found in ABA Model Rule of Professional Conduct 1.6(b)(5):

   "(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:

   "(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client." (7) Today's exception traces its lineage to Canon 37, which was adopted in 1928 as an addition to the ABA Canons of Professional Ethics that were originally promulgated in 1908. (8) When the Canons were replaced by the ABA Model Code of Professional Responsibility in 1969, (9) the self-defense exception was carried over into Model DR 4-101 (C)(4). (10) When, in turn, the Model Code was replaced by the ABA Model Rules in 1983, (11) the exception continued as Model Rule 1.6(b)(2) and was then renumbered to its current position in 2003 as a part of the "Ethics 2000" amendments. (12)

   Comment 10 to ABA Model Rule 1.6 rounds out the text of the exception and focuses on civil claims, disciplinary charges and similar proceedings (13) involving "a wrong allegedly committed by the lawyer":

   "Where a legal claim or disciplinary charge alleges complicity of the lawyer in a client's conduct or other misconduct of the lawyer involving representation of the client, the lawyer may respond to the extent the lawyer reasonably believes necessary to establish a defense. The same is true with respect to a claim involving the conduct or representation of a former client. Such a charge can arise in a civil, criminal, disciplinary or other proceeding and can be based on a wrong allegedly committed by the lawyer against the client or on a wrong alleged by a third person, for example, a person claiming to have been defrauded by the lawyer and client acting together. The lawyer's right to respond arises when an assertion of such complicity has been made. Paragraph (b)(5) does not require the lawyer to await the commencement of an action or proceeding that charges such...