Opinion 136: A Lawyer’s Response to a Client’s Online Public Commentary Concerning the Lawyer, 0619 COBJ, Vol. 48, No. 6 Pg. 62

Position:Vol. 48, 6 [Page 62]
 
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48 Colo.Law. 62

Opinion 136: A Lawyer’s Response to a Client’s Online Public Commentary Concerning the Lawyer

Vol. 48, No. 6 [Page 62]

The Colorado Lawyer

June, 2019

Adopted on April 15, 2019

CBA Ethics Committee

Introduction

This opinion considers the ethical considerations that apply when a lawyer responds online to negative online reviews posted by the lawyer's current, former, or prospective client. As used in this opinion, "client" includes only these categories of critics.

Online reviews of a lawyer's performance are increasingly common and often impact prospective clients' choice of counsel. When a lawyer receives a negative review, the lawyer might want to respond, including to clarify the underlying circumstances, correct inaccurate statements contained in the review, or otherwise defend the lawyer's work for the reviewing client. Nevertheless, the Colorado Rules of Professional Conduct (Colo. RPC or the Rules), relevant opinions from the Colorado Supreme Court Office of the Presiding Disciplinary Judge (PDJ), and cases and ethics opinions in other jurisdictions indicate that a lawyer's ability to publicly respond to online criticism is limited.

The threshold question is whether a lawyer may ever respond to negative online reviews. The answer is "yes." No Colorado ethical rule specifically bars lawyers from responding to online reviews, but the duty of confidentiality contained in Colo. RPC 1.6 (applicable to current clients) and Colo. RPC 1.9(c) (applicable to former clients) prevents the lawyer from disclosing information related to the representation of a client, absent an exception to those Rules or the client's informed consent. Under the one potentially applicable exception to the general duty of non-disclosure, a lawyer may respond if the online criticism creates a "controversy" be-tween the lawyer and the client and the lawyer's response is limited to information reasonably necessary to establish a claim or defense on behalf of the lawyer in that controversy.

Applicable Colo. RPC

Whether and, if yes, to what extent, a lawyer may respond to a client's negative online review implicates Rules 1.6 ("Confidentiality of Information"), 1.8(b) ("Conflict of Interest; Current Clients; Specific Rules"), 1.9 ("Duties to Former Clients"), and 1.18 ("Duties to Prospective Client"). The pivotal rule is Colo. RPC 1.6(a), which provides in pertinent part: "A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by paragraph (b)."

Rule 1.6(b) sets forth exceptions to Rule 1.6(a). Applicable here is Colo. RPC 1.6(b) (6), sometimes referred to as the self-defense exception, which allows a lawyer to disclose information related to the representation

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.

Several comments to Colo. RPC 1.6 explain these concepts. Comment [3] contrasts the lawyer's ethical duty of confidentiality with the attorney-client privilege and the work-product doctrine: While the ethical duty of confidentiality applies to lawyers in all situations and covers a broad scope of information, the attorney-client privilege and the work-product doctrine apply primarily in litigation and have a far narrower scope:

The principle of client-lawyer confidentiality is given effect by related bodies of law: the attorney-client privilege, the work-product doctrine and the rule of confidentiality established in professional ethics. The attorney-client privilege and work-product doctrine apply in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client. The rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law. The confidentiality rule, for example, applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source. A lawyer may not disclose such information except as authorized or required by the Rules of Professional Conduct or other law.

Comment [10] elaborates on the self-defense exception stated in...

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