Ethics in Practice, 072021 MEBJ, 36 MEBJ, Pg. 94
| Author | PAUL MCDONALD |
| Position | Vol. 36 2 Pg. 94 |
PAUL MCDONALD
PAUL MCDONALD is a shareholder and the general counsel of Bernstein Shur Sawyer & Nelson. In addition to his commercial and business litigation practice, Paul represents lawyers in ethics, risk management, and malpractice matters. He can be reached at pmcdonald@bernsteinshur.com.
Responding to Unfavorable Online Criticism: Proceed With Caution
On her first day of work as a newly minted lawyer, Jean B. was invited into Senior Partner’s office for a welcoming chat. As Jean left his office, Senior Partner said, “Jean, one of the most important pieces of career advice I ever received, and which I am passing on to you, is that your reputation is your greatest asset; so, enhance, preserve, and protect it against all who would seek to impair it.” Jean went on to become a successful lawyer, highly regarded both for her skill and integrity within her firm, the bar, and the community at large.
Recently, Jean was retained by Client, part-owner of a successful business, in a dispute with his fellow shareholders. The issues were complex and the litigation was especially contentious. Despite Jean having done some of her best work ever in the matter, the outcome for Client fell below his expectations. While Jean, too, was disappointed in the result, that feeling paled in comparison to the emotions she experienced when she learned that Client had posted a critical online review of Jean’s performance in the matter. The scathing review, rife with misrepresentations of fact and otherwise misleading statements, was a broadside attack on Jean’s competence and judgment. Upon reading the review, Jean immediately harkened back to Senior Partner’s career advice. Jean thought: this is unjust and wrong; I need to take action to protect my reputation. But what exactly can Jean do without running afoul of her ethical obligations as a lawyer?
Earlier this year, the ABA Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 496, which provides helpful guidance addressing Jean’s ethical quandary: balancing her right to defend and protect her reputation against unfair attack and her obligation to maintain the confidentiality of Client’s information.1 Unfortunately for Jean, her obligation to preserve the confidentiality of Client’s information greatly restricts her ability to respond to the unfair and even untrue statements in Client’s online review.
Rule Of...
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