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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-5023" src="https://www.thelawforlawyerstoday.com/wp-content/uploads/sites/754/2020/05/Social-media-4-269x300.jpg" alt="" width="269" height="300">We&rsquo;ve <a href="https://www.thelawforlawyerstoday.com/2017/12/3682/">noted before</a>&nbsp;that just because information relating to your representation of a client might be publicly available, your duty of confidentiality means that you can&rsquo;t disclose it if it is not &ldquo;generally known.&rdquo;&nbsp; The two concepts &mdash; public availability and being &ldquo;generally known&rdquo; &mdash; &nbsp;are not the same, as a New Jersey lawyer learned earlier this month when the state supreme court <a href="http://drblookupportal.judiciary.state.nj.us/DocumentHandler.ashx?document_id=1129260">imposed a one-year suspension</a> in a disciplinary case that (among other things) involved a Yelp review.
&ldquo;Good for the goose...&rdquo;
According to the disciplinary board&rsquo;s <a href="http://drblookupportal.judiciary.state.nj.us/DocumentHandler.ashx?document_id=1124239">decision</a>, the lawyer represented a client in a child custody matter and achieved a &ldquo;seemingly good result&rdquo; via settlement.&nbsp; Over a year later, however, the client posted &ldquo;poor reviews&rdquo; of the lawyer&rsquo;s services on several websites.&nbsp; In turn, as set out in the board decision, the lawyer posted a review of the client&rsquo;s massage business on Yelp, where he said that the client
is a convicted felon for fleeing the state with children.&nbsp; A wonderful parent.&nbsp; Additionally, she has been convicted of shoplifting from a supermarket.&nbsp; Hide your wallets well during a massage.&nbsp; Ooops, almost forgot about the DWI conviction.&nbsp; Well maybe a couple of beers during a massage would be nice.
After the client complained, the lawyer sought to explain his actions, according to the board decision.&nbsp; He admitted he was &ldquo;very upset&rdquo; by the client&rsquo;s negative Yelp rating of his practice, and felt that his response was justified because &ldquo;what was good for the goose was good for the gander.&rdquo;
The lawyer conceded that his conduct regarding the client &ldquo;rating was [not] my finest moment,&rdquo; said the board.&nbsp;&nbsp;The lawyer contended , however, that the conduct was not unethical because his disclosures &ldquo;were public information and I did not violate attorney client privilege.&rdquo;
Public information vs. generally known
<a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_9_duties_of_former_clients/">Model Rule 1.9(c)</a>, like its New Jersey analogue, prohibits&nbsp;using &ldquo;information relating to the representation&rdquo; to the disadvantage of a former client with only narrow exceptions, &ldquo;or when the information has become generally known.&rdquo;
Here, said the board, the information in the Yelp review the lawyer posted related to the former representation, and the information had not become generally known.&nbsp; The board cited New Jersey state and federal case authority and the ABA&rsquo;s <a href="http://filehost.thompsonhine.com/uploads/aba_formal_opinion_479.authcheckdam_5247.pdf">Formal Opinion No. 479 (2017)</a>.
As the ABA advised, &ldquo;the phrase &lsquo;generally known&rsquo; means much more than publicly available or accessible.&nbsp; It means that the information has already received widespread publicity.&rdquo;&nbsp; Merely being &ldquo;of public record&rdquo; does not mean that the information is &ldquo;generally known&rdquo; when it is not &ldquo;within the basic understanding and knowledge of the public,&rdquo; said the New Jersey district court in a 2006&nbsp;<a href="https://filehost.thompsonhine.com/uploads/11911364410_1701.pdf">opinion</a>.&nbsp; And in a previous disciplinary <a href="http://drblookupportal.judiciary.state.nj.us/DocumentHandler.ashx?document_id=1056855">opinion</a>, the state supreme court had found that subpoenaed records from police departments had not become &ldquo;generally known.&rdquo;
On these bases, the state supreme court adopted the board&rsquo;s decision finding a violation of Rule 1.9, and suspended the lawyer for a year, based on that plus other misconduct.
Don&rsquo;t yelp
Retaliatory reviews on social media seem to be a recurrent ethical trouble spot for lawyers.&nbsp; But you might be tempted to use or disclose client information in other more-benign-seeming settings &mdash; like at a social gathering (or Zoom hangout), where talking shop might lead to dishing the dirt on a matter because &ldquo;after all, it&rsquo;s &lsquo;of public record.&#8217;&rdquo;&nbsp; In situations like that, the ethics rules should make you think twice.
Dan Bressler&rsquo;s <a href="https://bresslerriskblog.com/" target="_blank" rel="noopener noreferrer">Risk Blog</a> and <a href="http://bernabepr.blogspot.com/2020/05/new-jersey-supreme-court-reiterates.html">The Professional Responsibility Blog</a> also mention this case.

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Ethics

Legal Ethics, Professional Responsibility and the Business of Law

Yelp review leads to N.J. lawyer’s suspension where client info was not “generally known”