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The Ethics of Responding to Negative Online Reviews

Stacked3Here is a recent Daily Record column. My past Daily Record articles can be accessed here.

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These days the online world matters just as much as the offline world when it comes to conducting business. The Yellow Pages have been replaced by Google and apps, just as restaurant and movie reviews in newspapers have now been co-opted by the online reviews of actual customers. And just like every other technology-based trend, lawyers are no longer immune from the effects of the online review ecosystem.

In fact, for many small law firms, negative online reviews can be a big problem. I often frequent internet forums where lawyers will seek advice on how to handle a particularly negative and unfair online review. In some cases the person leaving the review was never even a client of the attorney’s firm, but the negative review left regarding an alleged unpleasant encounter with the attorney or law firm staff member resulted in a significant decline in the law firm’s rating. In others, a disgruntled client will leave a damning review grounded in untruths that drastically reduce the firm’s Google My Business or Yelp rating.

In cases like that, what’s a lawyer to do? What’s the best way to address the review both in terms of optics and ethics? While there’s no clearcut answer from an optics standpoint and there’s undoubtedly more than one way to go about effectively responding, the ethics of the situation is often more clear.

In recent years, a number of different jurisdictions have addressed the issue of how to ethically respond to negative online reviews, and one of the most recent to do so was North Carolina in Proposed 2020 Formal Ethics Opinion 1. As of now, this opinion is available for public comment and has not yet been published in final form. But the conclusions reached therein align with many of the opinions issued in other jurisdictions on this topic, so it’s illustrative of how to navigate the ethical issues when responding to a negative online review of your law firm.

The facts in the case at issue are simple: the lawyer’s former client posted a negative review on a consumer rating website that the lawyer believed was false. The lawyer was in possession of information that would rebut the allegations, but said information was confidential. The question to be answered was how the lawyer might ethically respond to the comments via a publicly viewable post.

At the outset, the Ethics Committee emphasized the importance of client confidentiality. The Committee explained that because confidentiality is a foundational element of the attorney-client relationship, lawyers are prohibited from revealing all confidential information acquired during the course of representation unless: 1) their former client consents or 2) one of the exceptions set forth in Rule 1.6(b) are applicable.

The Committee then turned to considering any applicable exceptions and determined that the only one that might apply to the situation at hand was Rule 1.6(b)(6), which “permits a lawyer to reveal information to the extent the lawyer reasonably believes necessary: [T]o 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 to allegations in any proceeding concerning the lawyer’s representation of the client.”

Next, the Committee examined the nature of online reviews and determined that a negative online review did not constitute a “legal claim or disciplinary charge arising in a civil, criminal, disciplinary, or other proceeding”, and thus did not fall within the parameters of that exception.

Accordingly, the Committee concluded that confidential information may not be used when responding to online criticism of a lawyer’s services: “(A) (l)awyer may post an online response to the former client’s negative online review provided the response is proportional and restrained and does not contain any confidential client information.”

In other words, think before you type, since the internet is forever. And if at all possible, take steps to move the dispute offline so that you can discuss it with the client face-to-face and attempt to come to an amicable - and private - resolution of any outstanding issues. That way you’ll hopefully end up with a happy former client who may one day send business your way, and at the same time avoid leaving a permanent online record that you might later come to regret.

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 niki.black@mycase.com.