The rise of social media and online reviews has created a dilemma: How can an attorney respond to a negative review without violating ethical or professional responsibility? Just as many merchants respond to online customer reviews, many attorneys may feel the urge to rebut negative reviews posted about them online, be they from disgruntled clients or even opposing litigants. However, providing a detailed response online could create ethical problems.
Last week, the New Jersey Advisory Committee on Professional Ethics (ACPE) issued guidance on how attorneys can respond to false, misleading, and/or inaccurate statements by former or prospective clients. The ACPE stated that attorneys may respond, but they must be cognizant of Rules of Professional Conduct 1.6 and 1.18, which provide that an attorney cannot reveal information obtained in the representation of or discussions with clients and/or prospective clients. The ACPE emphasized that while attorneys may reveal otherwise privileged or confidential materials in the defense of a legal malpractice action or discipline charge, a negative online review does not rise to that level, and attorneys cannot disclose confidential information merely to protect their online reputation. Instead, the ACPE suggested that attorneys respond to negative reviews by stating that the review does not accurately depict what occurred, while noting that they are not permitted to explain in the public forum the specific reasons why.
The New Jersey ACPE’s opinion is consistent with the standards set by other states. For example, the New York State Bar Association in 2014 included provisions in its Rules of Professional Conduct that prevent attorneys from disclosing a client’s or prospective client’s confidential information. Like the New Jersey ACPE, the NYSBA concluded that while attorneys may want to respond to a negative online review in the same way they might respond to a malpractice claims or discipline charge, a negative online review is not a “formal charge,” and the “self-defense” provisions of the Rules of Professional Conduct do not apply. This is because a negative online review cannot result in any kind of sanction. In its 2019 Social Media Guidelines, the NYSBA suggested a similar response as the New Jersey ACPE if the attorney feels compelled to respond – a simple statement that the information is not accurate with a note that the attorney is not at liberty to rebut the review in a point-by-point fashion.
While it is human nature to want to respond to negative reviews, and attorneys may feel compelled to “make their case” and defend themselves, they must be mindful of the rules of professional conduct. Attorneys should think long and hard before posting any information about a former client and ensure that they are not revealing any confidential or privileged information while doing so. As the saying goes, some things are better left unsaid.