The American Bar Association recently issued a formal opinion providing attorneys with helpful guidance regarding whether, and how, to respond to online criticism: Formal Ethics Opinion 496, Responding to Online Criticism (January 13, 2021).
The ABA opinion suggests that attorneys who are the subject of negative online reviews should think twice before firing off a response. The main ethical risk that an attorney faces in responding to a negative online review is disclosing confidential client information. ABA Model Rule 1.6 generally bars an attorney from disclosing information that relates to the representation of a client. Similarly, attorneys may not make disclosures that could reasonably lead to the discovery of confidential information by a third party.
Rule 1.6(b)(5) provides, in part, that an attorney may disclose confidential information “to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client” or to “respond to allegations in any proceeding concerning the lawyer’s representation of the client.” In its recent opinion, the ABA concluded that online criticism does not involve a “proceeding,” and that a negative online review, because of its informal nature, is not a “controversy between the lawyer and the client.” The ABA further determined that an attorney need not make a public response to online criticism in order to “establish a claim or defense,” thereby falling outside of the exception, which applies “only to the extent the lawyer reasonably believes  is necessary.” In sum, according to the ABA, an attorney is prohibited from revealing confidential information in responding to a negative online review.
Opinion 496 highlights six best practices for attorneys who are the subject of negative online reviews:
Although it may be tempting to respond to an online post when the opinion posted reflects negatively on the attorney’s reputation, is inaccurate, or even completely untrue, attorneys confronted with negative online reviews should consider not responding to the post at all. Or, if the attorney chooses to respond, heed the ABA’s guidance to help ensure that the attorney does not run afoul of their ethical obligations. Attorneys who choose to respond online must not disclose information that relates to a client matter or that could reasonably lead to the discovery of confidential information by others. Further suggestion on language for such a post can be found in Erin Higgins’ Massachusetts Lawyers Weekly article, “Can lawyers respond to negative online reviews?” which was published on April 8, 2019.