To Respond or Not to Respond? Confidentiality and Defending Against Online Critics
| Citation | Vol. 27 No. 2 Pg. 0016 |
| Pages | 0016 |
| Publication year | 2021 |
BY LONNIE T. BROWN JR.
With the advent of the internet and the proliferation of online rating and review sites, the likelihood that lawyers will be subject to negative online critiques has increased significantly. When this occurs, the natural impulse is to refute the criticism, directly and comprehensively. ... In the end, not responding at all may prove to be the wisest strategy.
BY LONNIE T. BROWN JR.
A former client, unhappy with Lawyer X's representation, posts the following message online: “Lawyer X is the worst! He neglected my case, never returned phone messages or texts, and generally provided incompetent representation that caused me to lose at trial. DON'T HIRE LAWYER X, EVER!!” Lawyer X sees the post and knows that it does not accurately portray his representation of the former client. Should Lawyer X respond or simply ignore the post and move on?
Although dissatisfied clients have always been able to criticize their lawyers in this fashion, the threat of real harm was probably minimal given the limited dissemination of such critiques. However, the advent of the internet and various rating sites (such as Yelp) render this type of professional criticism broadly accessible and far more likely to have a long-lasting detrimental impact upon a lawyer's reputation and practice.
This enhanced likelihood of tangible harm has increased lawyers' interest in responding to online criticism to set the record straight and protect their good names. But is this ethically acceptable? If so, what is the permissible scope of that response? And, more fundamentally, is it worth responding at all?
Generally speaking, lawyers are permitted to respond to online critics. There are, however, significant ethical constraints—largely stemming from a lawyer's duty of confidentiality—that limit the content of and manner in which one may respond. In addition, the substance of a permissible response may be further affected by whether the critic is a client, former client or prospective client.[1]
Confidentiality v. Attorney-Client Privilege
In considering the propriety of responding to online criticism, it is first necessary to examine the scope of a lawyer's duty of confidentiality and to distinguish that ethical obligation from the protection afforded by the attorney-client privilege. In Georgia, a lawyer's duty of confidentiality is defined in Rule 1.6 (a) of the Rules of Professional Conduct:
A lawyer shall maintain in confidence all information gained in the professional relationship with a client, including information which the client has requested to be held inviolate or the disclosure of which would be embarrassing or would likely be detrimental to the client, unless the client gives informed consent, except for disclosures that are impliedly authorized in order to carry out the representation, or are required by these rules or other law, or by order of the court.[2]
It is important to recognize the breadth of this obligation. The rule does not simply apply to information that is "communicated in confidence by the client but also to all information gained in the professional relationship, whatever its source."[3] Furthermore, the information need not be embarrassing or detrimental to the client, nor does a client need to expressly ask a lawyer to keep the information confidential. Such circumstances obviously fall within the scope of the duty, but they only represent a subset of what is protected.
Distinguishing the duty of confidentiality from the attorney-client privilege is also critical. Everything that is protected by the attorney-client privilege is necessarily protected by the duty of confidentiality, but the reverse is not true. The privilege generally protects (against legally compelled disclosure) communications, made in confidence, between a lawyer and client (or their agents) for the purpose of obtaining or providing legal advice or assistance.[4] The duty of confidentiality, on the other hand, protects a much larger body of information, and the protection afforded is a restriction on a lawyer's ability to voluntarily disclose covered information, whether or not there has been a legal effort to compel such disclosure.[5] The distinction is highly relevant in the context of responding to online criticism, especially in considering the possible effect of a client's waiver of the attorney-client privilege on the substance of what a lawyer can permissibly disclose in response. (See Part II, below.) Furthermore, the duty of confidentiality does not apply to clients only; it likewise covers information regarding former and prospective clients to the extent that it falls within Rule 1.6 (a)'s scope. With regard to former clients, Rule 1.9 (c) states that:
A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter
(1) use information relating to the representation to the disadvantage of the former client except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client, or when the information has become generally known; or
(2) reveal information relating to the representation except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client.[6]
Interestingly, the scope of the duty under Rule 1.9 (c) extends to a lawyer's "use" of confidential information to the disadvantage of a former client, as well to disclosure, unless the information has become "generally known."[7]
In Georgia, a lawyer's duty of confidentiality is defined in Rule 1.6 (a) of the Rules of Professional Conduct ...
Effective May 14 of this year, the Supreme Court of Georgia amended the Rules of Professional Conduct by, among other things, adding Rule 1.18, which deals exclusively with duties owed to prospective clients.[8] The new rule, fashioned largely after ABA Model Rule 1.18,[9] defines a "prospective client" as "[a] person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter."[10] If one qualifies as a prospective client, "[e]ven when no client-lawyer relationship ensues, a lawyer who has learned information from a prospective client shall not use or reveal that information, except as Rule 1.9 would permit with respect to information of a former client."[11] Hence, a lawyer essentially owes the same duty of confidentiality to a prospective client as would be owed to a former client, except that the protection seems to be limited only to "information learned from the prospective client."[12]
Given these protections, a lawyer may voluntarily disclose confidential information only if: (1) the lawyer obtains informed consent; (2) the disclosure is impliedly authorized in order to carry out the representation; or (3) there is an exception (under Rule 1.6 (b), Rule 3.3 or other law) that permits (or requires) such disclosure.
Can Lawyers Respond to Online Criticism by Clients?
Since 2012, there has been a series of state ethics opinions dealing with the issue of the propriety of a lawyer responding to online criticism. The general consensus has been that lawyers may respond, but they may not disclose information protected by the duty of confidentiality, and their response should otherwise be "proportional and restrained."[13] Early this year, the ABA Standing Committee on Ethics and Professional Responsibility joined the chorus by issuing Formal Opinion 496, which likewise took the position that responses to online criticism should be appropriately measured and must not run afoul of the duty of confi-dentiality.[14] Hence, the primary question relates to whether such responses involve circumstances that would permit the disclosure of confidential information.
One could argue that by criticizing their lawyer, a client "impliedly authorizes" the lawyer to respond by disclosing confidential information to the extent the lawyer reasonably believes necessary. This, however, is not what is meant by "impliedly authorized." As the rule makes clear, the disclosure must be "impliedly authorized in order to carry out the representation."[15] An online response is in no way related to carrying out the representation. Thus, this aspect of the rule is inapplicable in the context of online criticism.[16]
A more plausible contention is that a lawyer should be permitted to respond under the self-defense exception to the duty of confidentiality. In particular, Rule 1.6 (b) (1) (iii) provides:
A lawyer may reveal information covered by paragraph (a) which the lawyer reasonably believes necessary ... 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...
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