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Thompson Hine LLP, a full-service business law firm with approximately 400 lawyers in 11 offices, was ranked number 1 in the category “Most innovative North American law firms: New working models” by The Financial Times and was 1 of 7 firms shortlisted for The American Lawyer’s inaugural Legal Services Innovation Award. The firm has been recognized by the National Law Journal as a Legal Technology Trailblazer and featured by Bloomberg for its innovative service delivery models, which drive accuracy and predictability. The firm’s commitment to innovation is embodied in Thompson Hine SmartPaTHTM – a smarter way to work – predictable, efficient and aligned with client goals. For more information, please visit ThompsonHine.com and ThompsonHine.com/SmartPaTH.

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<img style="max-width: 100%;height: auto;max-width: 100%;height: auto" loading="lazy" class="alignright size-medium wp-image-5391" src="https://www.thelawforlawyerstoday.com/wp-content/uploads/sites/754/2021/01/Online-reviews-300x200.jpg" alt="" width="300" height="200">Here&rsquo;s a newsflash:&nbsp; you can&rsquo;t defend yourself against a client&rsquo;s bad online review by revealing client confidential information, as the ABA Ethics Committee reminded us in an <a href="https://filehost.thompsonhine.com/uploads/aba-formal-opinion-496_2b7f.pdf">opinion</a> last week.
We&rsquo;ve recently reported on the Oklahoma lawyer who was <a href="https://www.thelawforlawyerstoday.com/2020/12/5323/">disciplined</a> for his rogue consultant&rsquo;s conduct in connection with an online review; a New Jersey lawyer who was <a href="https://www.thelawforlawyerstoday.com/2020/05/5014/">disciplined</a> for responding to a client&rsquo;s online review by posting a bad Yelp review of his own, which revealed client information; and a Massachusetts lawyer who was <a href="https://www.thelawforlawyerstoday.com/2019/11/4684/">disciplined</a> for disclosing client information on Facebook.
No &ldquo;self-defense&rdquo;
If these cautionary tales were not enough, the ABA now has removed all doubt, with its guidance that the &ldquo;self-defense&rdquo; exception to the duty of confidentiality does not support revealing client information in response to an online review.
<a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_6_confidentiality_of_information/">Model Rule 1.6(a)</a>, adopted in some form in all U.S. jurisdictions, bars disclosing &ldquo;information relating to the representation of a client.&rdquo;&nbsp; That&rsquo;s a very broad prohibition, and of course covers much more territory than just information that would come under the attorney-client privilege.
What the ABA has now made crystal clear is its view that the confidentiality exception expressed in Model Rule 1.6(b)(5) does not apply here.&nbsp; The &ldquo;self-defense&rdquo; exception covers three situations that can entitle you to disclose otherwise-confidential information:
<ul>
<li>establishing a claim or defense in a lawyer-client controversy;</li>
<li>establishing a defense to a criminal or civil charge based on conduct in which the client was involved; and</li>
<li>responding to allegations in &ldquo;any proceeding concerning the lawyer&rsquo;s representation of the client.&rdquo;</li>
</ul>
In its latest Opinion 496, however, the ABA flatly rules out applying these exceptions to permit any degree of confidential information disclosure in response to online reviews:&nbsp; &ldquo;A negative online review, alone, does not meet the requirements of permissible disclosure in self-defense under Model Rule 1.6(b)(5) and, even if it did, an online response that discloses information relating to a client&rsquo;s representation or that would lead to discovery of confidential information would exceed any disclosure permitted under the Rule.&rdquo;
The ABA specifically shot down any notion that the world of online reviews would fall into the third, catch-all exception for &ldquo;any proceeding concerning&rdquo; representing a client, saying that &ldquo;online criticism is not a &lsquo;proceeding,&rsquo; in any sense of that word, to allow disclosure under [that] exception...&rdquo;
What&rsquo;s a lawyer to do?
Instead of firing&nbsp; back and risking your license, the ABA has several good recommendations on what you can do:
<ul>
<li>consider not responding &mdash; after all, doing so &ldquo;may draw more attention to [the bad review] and invite further response from an already unhappy critic.&rdquo;</li>
<li>ask the website or search engine to take down the adverse information;</li>
<li>if you do choose to respond online, don&rsquo;t disclose &ldquo;information that relates to a client matter, or that could reasonably lead to the discovery of confidential information by another.&rdquo;</li>
<li>post an invitation for your critic to contact you privately to resolve the matter;</li>
<li>post a response saying that &ldquo;professional considerations preclude a response.&rdquo;</li>
</ul>
Any of these would be a better alternative than responding in the numerous ways that have gotten lawyers into trouble.
Commentators such as Prof. Alberto Bernabe, over at the <a href="http://bernabepr.blogspot.com/2021/01/aba-issues-new-ethics-opinion-on.html">Professional Responsibility Blog</a>, have noted that the latest opinion does not break any new ground.&nbsp; Nonetheless, it is a valuable reminder about avoiding risky online behavior, with some good how-tos.

core/freeform

Ethics

Legal Ethics, Professional Responsibility and the Business of Law

Negative online client reviews:  ABA gives some tips for responding