Here is a recent Daily Record column. My past Daily Record articles can be accessed here.
ABA Offers Ethical Guidance on Responding to Negative Online Reviews
Now that we live in a digital world, online reviews are becoming increasingly useful tools for consumers. Using these reviews, consumers are able to make more informed decisions when making purchasing decisions about products or services.
Online reviews are great for consumers, but for business owners, navigating the world of online reviews can be tricky since responses to reviews, both negative and positive, are decidedly public. This confounding newfound reality can present problems for lawyers seeking to respond to negative online reviews since doing so can sometimes trigger ethics rules regarding confidential information.
That’s where Formal Opinion 496, which was released last week by the American Bar Association (ABA), comes in. (Online: https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/aba-formal-opinion-496.pdf). In it, the ABA provides guidance and best practices for lawyers when it comes to ethically responding to negative online reviews.
At the outset, the Committee explained that because of the duty of confidentiality, “lawyers cannot blog about information relating to clients’ representation without client consent, even if they only use information in the public record, because that information is still confidential.”
Next, the Committee addressed the three exceptions to this prohibition, concluding that none of them applied when lawyers seek to respond to negative online reviews. First, the Committee determined that two of the exceptions were clearly inapplicable to the issue at hand. First, online criticism was not a situation that constituted a “proceeding.” Second, online criticism was not an occasion where it was necessary for lawyers to defend a criminal charge or civil claim against them relating to conduct involving the client.
Upon rejecting the applicability of the first two exceptions, the Committee turned to the third exception: where there exists a “controversy between a lawyer and client.” After analyzing opinions handed down from other jurisdictions, the Committee ascertained that the third exception was likewise inapplicable to the issue at hand: “The Committee concludes that, alone, a negative online review, because of its informal nature, is not a ‘controversy between the lawyer and the client’ within the meaning of Rule 1.6(b)(5), and therefore does not allow disclosure of confidential information relating to a client’s matter.”
After reaching the conclusion that lawyers are precluded from disclosing confidential information when responding online to negative reviews, the Committee provided some best practices to assist lawyers who are faced with negative online reviews.
First, the Committee suggested that lawyers reach out to the host of the website or search engine where the negative review appeared and request that the review be removed. The Committee cautioned that it’s important to avoid revealing any confidential information when doing so, and opined that lawyers may choose to say that “the post is not accurate or that the lawyer has not represented the poster if that is the case.”
The Committee also advised that, from a practical standpoint, lawyers should carefully consider whether to respond at all. The Committee explained that "the more activity any individual post receives, the higher the post appears in search results online… (and) no response may cause the post to move down in search result rankings and eventually disappear into the ether.”
If, however, you choose to respond, the Committee offered a number of different permissible options. First, the Committee suggested that lawyers attempt to move the conversation offline with a response such as, “Please contact me by telephone so that we can discuss your concerns.” But the Committee cautioned that if you follow that route, you will need to ensure that you follow up with the client since doing “nothing to attempt to assuage the person’s concerns risks additional negative posts.”
Another option offered by the Committee is to respond online by simply advising that ethical rules preclude a response. Here’s an example of this type of response offered by the Committee: “Professional obligations do not allow me to respond as I would wish.”
Finally, the Committee cautioned that if you do ultimately choose to respond online, you must avoid disclosing “information that relates to a client matter or that could reasonably lead to the discovery of confidential information by others.”
Whatever choice you make, tread lightly, and never forget that the internet is forever. Evan if you change your mind and delete a response or request that it be removed, its memory (and possibly a screenshot) will live on. The best course of action is to err on the side of caution and think before you post. As I always say: better safe than sorry!
Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase law practice management software for small law firms. She is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a Thomson Reuters treatise. She writes legal technology columns for Above the Law and ABA Journal and speaks regularly at conferences regarding the intersection of law and technology. You can follow her on Twitter at @nikiblack or email her at firstname.lastname@example.org.