Ethics. Trashed by Clients Online?

• Author: Cynthia Sharp
• Pages: 30-31

the murder of a federal of cer in 1992 ,

implicitly reset the drama on a Jefferso-

nian landscape of a rural post-revolu-

tionary America where a frontier family

holds out against an overreaching feder-

al authority.

And in 1979, Spence won a suit

against Kerr-McGee Corp. on behalf of

the estate of Karen Silkwood, a worker

poisoned by plutonium from a plant

that manufactured fuel rods for nuclear

power plants. Spence even provided

the jury with a cinematic title for his

closing argument, calling it The Cimar-

ron Syndrome . Silkwood had been an

employee at the Kerr-McGee Cimarron

Fuel Fabrication Site in Oklahoma.

Spence’s title cleverly cross-references

the then-popular movie The China Syn-

drome, a  ctional story about a Califor-

nia nuclear power plant disaster.

Spence’s trial story and closing argu-

ment in the Silkwood case are both set

on a mythic Western landscape on the

edge of civilization, in a frontier town

that had been taken over by a villainous

outlaw gang. Even Spence’s cowboy tri-

al out t purposefully evoked a dreams-

cape from a previous century.

The novelist Joyce Carol Oates once

observed that her stories could not exist

without the settings in which they were

imagined, and that she is a storyteller

“mesmerized by places” where the

settings the “characters inhabit are as

crucial ... as the characters themselves.”

Likewise, the depictions of settings and

the imagery framing scenes are import-

ant tools in the legal storyteller’s toolkit

in some genres of legal storytelling. Q

Philip N. Meyer, a professor at Vermont

Law School, is the author of Storytell-

ing for Lawyers.

Practice Matters | STORYTELLING

Attorneys who receive neg-

ative online reviews may

feel compelled to respond,

especially if the reviews are

unfair or inaccurate. Formal and infor-

mal ethics opinions issued throughout

the country consistently agree that

attorneys are permitted to respond to

negative reviews. But how it’s done is a

matter of ethics and professionalism.

When an attorney receives a bad

review, Michael Kennedy, who serves

as Vermont’s bar counsel, recommends:

“Think, and breathe deep before re-

sponding. In my view, it’s not as much

an ethics thing—the law is clear that a

negative online review doesn’t fall with-

in the self-defense exception—as it is

good business sense. ... As bar counsel,

my job is risk management. There’s no

ethical risk in not responding.”

One critical boundary for attorney

response is set by Model Rule 1.6 of

the ABA Model Rules of Professional

Conduct, which prohibits revealing con-

 dential information acquired during

the professional relationship with a

client unless an exception, such as the

self-defense exception, is satis ed.

As the Los Angeles County Bar

Association explained in Ethics Opin-

ETHICS

Trashed by Clients Online?

Ethically responding to negative reviews

BY CYNTHIA SHARP

ion No. 525, a response is allowed as

long as no con dential information is

disclosed, the response does not injure

the former client with regard to the

prior representation, and the response is

“proportionate and restrained.” Similar

standards have been adopted in San

Francisco , Texas , Colorado , Florida and

Pennsylvania .

“With a little ingenuity, a lawyer

can respond to a bad review without

disclosing con dences,” says Stephen

Gillers, a New York University School

law professor and the author of Reg-

ulation of Lawyers: Problems of Law

and Ethics.

“She can, for example, expressly

label an allegation as false and say that

her ethical duties prevent her from re-

sponding in detail. She should keep the

tone respectful,” Gillers adds.

Claiming an aggressive response to

a negative post is self-defense is not a

viable option. As the North Carolina

State Bar notes in a Jan. 23 proposed

opinion , “the ‘self-defense’ exception

applies to legal claims and disciplinary

charges arising in civil, criminal, dis-

ciplinary or other proceedings,” and it

concludes that a negative online review

does not rise to this threshold.

Philip Meyer

Photo by Emily Potts/Vermont Law School; photo illustration by Brenan Sharp/ABA Journal

ABA JOURNAL | JUNE–JULY 2020

30

ABAJ J E-J Y P A MA E S PM