By Dianne Jackson McLean
What are the ethical obligations of an attorney in responding to negative comments posted on social media (Twitter, Yelp, or other channels) by an existing client or former client, particularly if the comments are inaccurate and even if accurate, only portray part of the representation?
After all, an attorney’s reputation is a valuable asset that contributes to retaining existing clients and more importantly in obtaining new clients. This is the issue that is addressed in the recently released ethics opinion of the Standing Committee on Ethics and Professional Responsibility of the American Bar Association, Formal Opinion 496, issued on January 13, 2021, Responding to Online Criticism. The opinion offers practical suggestions to attorneys based on the requirements of ABA Model Rule of Professional Conduct 1.6, which the opinion notes “prohibits a lawyer’s voluntary disclosure of any information that relates to a client’s representation, whatever its source, without the client’s informed consent, implied authorization to disclose, or application of an exception to the general rule.” In the context of Rule 1.6, the opinion offers practical tips and includes a discussion of the exceptions that will permit disclosure of confidential information. As discussed further below, these exceptions are much broader than the exceptions permitted in California.
The opinion concludes that criticism of an attorney in an online platform does not rise to the level of a dispute between lawyer and client that would permit disclosure of any confidential information regarding the client on the matter. An attorney’s initial reaction may be that she has to respond to set the record straight, because (i) the client is wrong, or (ii) the information provided by the client may have an adverse impact on the attorney’s reputation.
Thus, from a purely marketing perspective, the attorney may be warranted in responding.
However, attorneys are bound by the duty of loyalty and the duty of confidentiality. (See California Rules of Professional Conduct (“CRPC”) 1.6 and Comment , and CRPC 1.7 and Comment ). These two duties are considered the hallmark of the attorney-client relationship. They ensure that the attorney is working on behalf of the client, and that the client can have open communication with the attorney without consequences. The duty of confidentiality is broader than the attorney-client privilege and generally encompasses any communication and information that the attorney acquires in connection with the representation. (CRPC 1.6 and Comment ). CRPC Rule 1.6 states “(a) A lawyer shall not reveal information protected from disclosure by Business and Profession Code section 6068, subdivision (e)(1) unless the client gives informed consent or the disclosure is permitted by paragraph(b) of the rule.” Business and Profession Code section 6068 (e)(i) provides that an attorney has a duty “To maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets of his or her client.” Paragraph (b) of CRPC 1.6 and Business and Profession Code section 6068 permit disclosure without client consent as a last resort only when the attorney reasonably believes the disclosure is necessary to prevent a criminal act that the attorney reasonably believes is likely to result in death of, or substantial bodily harm to, an individual.
The opinion includes a discussion about when disclosure is permissible under the exceptions in paragraph (b)(5) of ABA Model Rule 1.6, but concludes that online criticism does not come within those exceptions and would violate ABA Model Rule 1.6 by disclosing confidential information. The opinion further explains that complaints or unfavorable comments by an existing or former client posted online regarding a matter is not considered a dispute that would permit disclosure of confidential information under ABA Model Rule 1.6, as Rule 1.6 would only permit disclosure in a dispute that is subject to a proceeding. CRPC 1.6 does not include such an exception.
The opinion ends by offering a few practical suggestions: (1) the attorney could elect to say nothing, based on the thought more attention will be brought to the issue if the attorney responds; (2) the attorney could request to discuss the matter off line with the client; (3) the attorney could provide a statement that due to his or her ethical obligations, the attorney cannot respond to the comments; and (4) the attorney could request that the search engine remove the post.
There is no California State Bar Formal Opinion on this subject. There are, however, two local bar association ethics committee opinions that address this topic, and suggest the manner in which California attorneys may respond to negative online reviews. See Bar Assoc. of San Francisco. Ethics Opn. 2014-1; Los Angeles County Bar Assoc., Prof Resp & Ethics Committee, Opn. 525 (2012). The new ABA opinion is generally consistent with these opinions and concludes that an attorney cannot reveal any confidential information in responding to online negative comments. Attorneys are bound by the rules of professional conduct even for disgruntled clients. Therefore, the suggestions provided by the ABA opinion are reasonable and should be used as a guidepost in responding to criticism on social media from clients.
Dianne Jackson McLean, Esq., is a partner at Goldfarb & Lipman LLP. Ms. Jackson McLean is a member of the Ethics Committee of the California Lawyers Association. The views expressed herein are her own.
 In California, there is an exemption from with the attorney-client privilege under Evidence Code Section 958 which provides there is no privilege between the client and the attorney for communications related to breach by the attorney or by the client or of a duty arising out of the lawyer-client relationship. That exemption likewise only applies where there is a dispute subject to a proceeding to which the Evidence Code applies. See Cal.Evid.Code §300..
 The Bar Association of San Francisco Opinion issued in 2014 suggests that no comments be made if the matter is ongoing, and that a response may be made after the matter if no confidential information is revealed. (See Bar Association of San Francisco Formal Opinion No. 2014-1.) The LA Bar association opinion provides that the attorney cannot reveal any confidential information. (See Los Angeles County Bar Association Formal Opinion No. 525).