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November 2014  |  Earn one hour of MCLE Credit in Legal Ethics

Lawyers on the defensive: the ethical considerations of responding to online reviews

By Drew Dilworth

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Dilworth

MCLE Self-Assessment Test

November 2014

SAMPLE TEST QUESTIONS

BELOW ARE SAMPLE QUESTIONS FROM THIS MONTH'S MCLE SELF-ASSESSMENT TEST.

1. Lawyers are allowed to publically “set the record straight” if a former client misrepresents facts in an on-line statement about the lawyer’s services, as long as the lawyer responds only to what the client has stated.


2. Publicly responding to a former client's negative online review is per se improper because of the risk that such response could violate the duties of loyalty or confidentiality.


3. The principal ethical considerations implicated in a lawyer responding to a negative online review by a former client are loyalty and confidentiality.


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Not only are clients flocking to the Internet these days to search for lawyers, they are increasingly using the Internet to rate, evaluate and in some cases, criticize, lawyers. Our natural reaction to criticism that we consider unwarranted is to respond to it and set the record straight. As technology evolves and clients become more vocal online, however, lawyers would do well to carefully consider the ethical parameters of any response they might be inclined to provide.

Two recent ethics opinions from bar associations within the state emphasize the caution lawyers must exercise in providing a public response to online criticisms by former clients. See Los Angeles County Bar Association Formal Opinion No. 525 and Bar Association of San Francisco Formal Opinion No. 2014-1. While neither opinion concludes that a public response by a lawyer is per se improper, each opinion highlights the ethical pitfalls that must be maneuvered. Those pitfalls lie principally in a lawyer’s duties of loyalty and confidentiality. As noted in the opinions, both duties can be implicated when responding to online criticism from a former client.

The most fundamental quality of the attorney-client relationship is the absolute and complete fidelity owed by an attorney to his or her client, i.e., the duty of loyalty. See Flatt v. Sup.Ct. (Daniel) (1994) 9 Cal.4th 275, 289. Even after termination of the representation, a lawyer may not act in a manner that will injure the former client with respect to the matter involved in the prior representation. See Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821 ("an attorney is forbidden to do either of two things after severing [the] relationship with a former client. [The attorney] may not do anything which will injuriously affect [the] former client in any matter in which [the attorney] formerly represented [the client] nor may [the attorney] at any time use against [the] former client knowledge or information acquired by virtue of the previous relationship"), quoting Wutchumna Water Co. v. Bailey (1932) 216 Cal. 564, 573-574. Given these principles, any public response by a lawyer to a former client’s online critique that undermines the former client’s legal matter could run afoul of the duty of loyalty.

The precise boundaries of the duty of loyalty to a former client are not clear, and lawyers must tread very carefully in making any public statements about a former client or the matter that the lawyer handled for the client. This is particularly true where that matter has not yet resolved. As explained by the Bar Association of San Francisco’s Ethics Committee: "If the matter previously handled for the client has not concluded, depending on the circumstances, it may be inappropriate for the attorney to provide any substantive response in the online forum, even one that does not disclose confidential information." San Francisco Formal Opinion No. 2014-1. Among the non-exclusive factors to be considered in weighing whether a public response would be ethically appropriate are (1) the status and nature of the ongoing proceedings, (2) the content of the attorney’s contemplated response, and (3) the negative impact the response could have on the ongoing proceedings. For example, in responding to an assertion by a former client that the attorney had "mismanaged" the client’s ongoing case, a statement by the attorney that his management of the case was reasonable "given the former client’s likelihood of success" (while not disclosing confidential facts) could suggest weakness in the client’s position and could negatively influence the opposing party’s willingness to settle or its litigation strategy. See San Francisco Formal Opinion No. 2014-1.

In addition to issues of loyalty, and equally significant, a lawyer responding to a former client’s online critique must ensure that any response does not disclose confidential information without the client’s consent. Los Angeles Formal Opinion No. 525. The duty of confidentiality requires a lawyer "to maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client." California Business & Professions Code section 6068(e); CRPC 3-100. The duty includes but is not limited to communications protected by the attorney-client privilege and survives termination of the attorney-client relationship. Goldstein v. Lees (1975) 46 Cal.App.3d 614, 621; Wutchumna, supra, 216 Cal. 564 at 571. Lawyers sometimes fail to appreciate the breadth of California’s duty of confidentiality and the fact that a "confidence" or "secret" can encompass publicly available information. See Matter of Johnson (Rev.Dept. 2000) 4 Cal. State Bar Crt. Rptr. 179, 189. The duty to protect confidentiality is not confined to a prohibition on communicating facts learned in the course of the relationship, since section 6068(e) separately imposes the duty to "preserve the secrets" of the clients. In re Soale (1916) 31 Cal.App. 144, 153. The term "secret" refers to other information gained during the attorney-client relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or likely detrimental to the client. See, e.g., California State Bar Formal Opinion N os. 1993-133, 1988-96. Since the duty of confidentiality survives termination of the attorney-client relationship, unauthorized disclosure by the lawyer of confidential information in responding to a former client’s online critique would run afoul of such duty.

What about a lawyer’s right to defend him or herself, you might ask? Surely, you say, if the former client is making untruthful statements the lawyer should be able to correct the record. Isn’t there some kind of "self-defense" exception to confidentiality when the client is in a dispute with the lawyer? The answer in California resides in California Evidence Code section 958, which is an evidentiary principle rather than a rule of professional conduct. As noted in the recent opinion from the Los Angeles Bar Association, in California the attorney-client privilege under Evidence Code section 950, et seq. is not subject to the creation of exceptions other than as specified by statute. Los Angeles Formal Opinion No. 525.

The evidentiary exception to privilege under 958 is limited in scope. It provides "[t]here is no privilege under this article as to a communication relevant to an issue of breach, by the lawyer or by the client, of a duty arising out of the lawyer-client relationship." There is little reported case law in California applying section 958. The authority that exists has typically limited application of the evidentiary exception to situations involving a former client’s assertion of a legal claim against a lawyer, or a lawyer’s assertion of a fee claim against the former client. See, e.g., Carlson, Collins, Gordon & Bold v. Banducci (1967) 257 Cal.App.2d 212, 228; Glade v. Superior Court (1978) 76 Cal.App.3d 738, 746-747; Smith, Smith & Kring v. Sup.Ct. (Oliver) (1997) 60 Cal.App.4th 573, 580; Schlumberger, Ltd. v. Sup.Ct. (Kindel & Anderson) (1981) 115 Cal.App.3d 386, 392. Neither situation is clearly implicated in an online forum in which a client or former client negatively reviews the lawyer’s work. The few reported decisions seeking to apply section 958 outside the malpractice and fee dispute context have typically rejected such application. See, e.g., Styles v. Mumbert (2008) 164 Cal.App.4th 1163, 1168 (exception inapplicable where no malpractice claim or fee dispute exists).

The narrow scope of the evidentiary exception embodied by section 958 is emphasized in an earlier opinion from the Los Angeles Bar Association in which its ethics committee concluded "there is no currently recognized self-defense exception in the context of third party actions against attorneys." See Los Angeles Formal Opinion No. 519. In reaching this conclusion the committee expressly noted that the evidentiary application of section 958 has been limited by the California courts to situations in which a claim is made by the client against the lawyer, or vice versa, or there is a client-initiated State Bar inquiry.

The stated purpose behind the evidentiary exception in California is that it would be unjust to permit a claimant (client or attorney) to invoke the attorney-client privilege so as to prevent the other from producing evidence in defense of a claim. California Evidence Code section 958, Law Revision Commission Comments. Although one could argue that the same purpose should be applicable where a client asserts alleged malfeasance of the lawyer in an online forum, it is by no means clear that the exception would apply in such a forum. At least in the context of assessing ineffective assistance of counsel claims, the California courts have appeared reticent to apply an evidentiary exception to situations that do not involve a formal legal proceeding or inquiry. See, e.g., In re Gray (1981) 123 Cal.App.3d 614, 616 (permitting California Evidence Code section 958 to be invoked in legal proceeding in which client challenged effectiveness of lawyer’s services). Similarly, in analyzing the self-defense exception embodied in Model Rule 1.6(b)(5), the American Bar Association has suggested that a formal legal proceeding or inquiry from a regulatory or disciplinary authority may be required for a permissible disclosure to occur. See ABA Formal Opinion No. 10-456. Absent such a proceeding or inquiry, the lawyer’s disclosure of the client’s confidential information may not be deemed "reasonably necessary" to the lawyer’s defense. Indeed, one local bar association has questioned whether section 958, part of California’s evidence code, could even apply in an online forum which is not a formal legal proceeding. See San Francisco Formal Opinion No. 2014-1.

Even where section 958 has been found applicable it is generally recognized, in California and elsewhere, that a lawyer’s disclosure of confidential information under an exception to privilege or a self-defense exception to confidentiality, must be narrowly tailored to respond only to the specific issues raised by the client. See Los Angeles Formal Opinion No. 525; San Francisco Formal Opinion No. 2014-1; and In the Matter of Dixon (Review Dept. 1999) 4 Cal. State Bar Crt. Rptr. 23, 58-59. Lawyers contemplating any form of response to an online client critique must therefore not only navigate their duties of loyalty and confidentiality, they must ensure that any response is narrowly tailored to addressing (in a non-privileged fashion and consistent with the duty of loyalty) the statements made by the former client. A lawyer who responds in a fashion that is unnecessary or excessive could run afoul of the evidentiary exception, even if applicable. See, e.g., Schlumberger Ltd., supra, 115 Cal.App.3d at 392.

The waiver notion sometimes relied upon by lawyers – that by disclosing information about the former representation the client has "waived" attorney-client privilege, opening the door to disclosure of otherwise confidential information – is equally murky territory. As noted above, section 958 is an evidentiary exception to the attorney-client privilege. Unlike ABA Model Rule 1.6, the exception is not embodied in the duty of confidentiality under either California Business & Professions Code section 6068(e) or California Rule of Professional Conduct 3-100. At least one ethics committee within the state has suggested that the evidentiary exception embodied in section 958 is not premised on the concept of waiver. See Los Angeles Formal Opinion No. 519. Instead, the statute provides "there is no privilege" under the limited circumstances set forth in section 958. How a court would apply the evidentiary concept of privilege waiver to a lawyer’s duty of confidentiality, in the context of public statements by a client made against the attorney in an electronic forum, is far from clear.

Given these ethical implications, and the ramifications of breaching the duties of loyalty or confidentiality, the most conservative piece of advice for a lawyer facing a former client’s negative online review may be to resist the reaction to set the record straight and debunk inaccuracies in the client’s statements. If the lawyer responds at all, he or she should consider limiting the response to a comment that while the lawyer disagrees with various statements contained in the review, professional and ethical considerations prohibit the lawyer from responding more directly to the statements. Should the client actually proceed with bringing formal claims against the lawyer in the context of a civil action or State Bar complaint, the lawyer may then have the opportunity to tell her side of the story with the full protections afforded by section 958, without running the risk of breaching the duties of loyalty or confidentiality in the process.

Andrew Dilworth is a litigation partner with the San Francisco-based law firm of Cooper, White & Cooper LLP, and a member of the State Bar’s Standing Committee on Professional Responsibility and Conduct (COPRAC) and the Association of Professional Responsibility Lawyers (APRL). He is a past chair of the Bar Association of San Francisco’s Legal Ethics Committee and also teaches legal ethics as an adjunct professor at the University of San Francisco School of Law. His practice focuses on the law governing lawyers.


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