Legal Law

The ABA is worried with coping with unfavourable on-line criticism in unsurprising and certain unfair methods

A few weeks ago, the American Bar Association’s Standing Committee on Ethics and Professional Responsibility released Formal Statement 496, which discussed how an attorney can ethically respond to negative online reviews. Previously, it was common knowledge that an attorney must not disclose confidential information as part of the attorney-client relationship in order to respond to a negative online review. The committee agreed.

The statement refers to the relevant ABA rule, according to which an attorney can disclose confidential information in order to establish a defense in a controversy between the attorney and the client or to respond to allegations in a proceeding regarding the representation of the client by the attorney .

The committee found that a negative review is not a literal “practice”. Second, they investigated whether online criticism creates “controversy” between an attorney and a client and whether it is appropriate to respond to criticism online in order to defend oneself. They concluded that because of its informal nature, a negative online review is not a controversy for the purposes of the rule and therefore does not allow the attorney to disclose confidential information. And even if the criticism should be viewed as an attorney-client controversy, a public response is not reasonably required to substantiate a defense of the criticism.

The committee warned that some states may sanction lawyers for disclosing confidential information online, and then made recommendations on how to respond online to negative comments. They recommend contacting the website or search engine to remove the post. This generally applies to posts that are really fraudulent, e.g. B. for posts from people who are not customers.

The committee also advises not to respond to the complaint at all, as this may trigger another response from the original poster. And reviews that are more active will generally get better online search results.

Finally, they recommend contacting the original poster and trying to work something out so that they will voluntarily remove the post.

I suspect most lawyers won’t have nice things to say about this opinion, although they won’t be surprised.

Let us take a look at the opinion and first look at the committee’s analysis of procedures. I agree that a negative online review is not a process. However, many of the well known review websites have dispute resolution procedures, including removing a negative review. Does participation in the dispute settlement process count as a “proceeding”? In this case, confidential information may only be passed on to the people involved in the settlement process.

It can be argued that a negative review can be an attorney-client controversy. The client makes a statement that can negatively impact an attorney’s reputation and livelihood. It may seem informal, but it’s not like flutter chatter, locker room gossip where the audience and potential for spread are limited. On the other hand, internet reviews can reach large audiences very quickly. When a review goes viral, it can lead to others building up in a packing mentality and giving multiple negative (mostly unfounded) reviews. Despite its informality, criticism should not simply be rejected because of its rapid and far-reaching effects.

The committee does not explain why a public reaction is unreasonable to defend the criticism when a negative evaluation leads to a controversy between attorney and client.

Finally, the committee’s recommendations on “best practices” are unlikely to produce the results the attorney wants. Or even a fair result. Most websites seldom remove a negative review – even if it is incorrect – because it is the one that generates the most interest. They claim that removing negative reviews affects the integrity of their reviews and it is up to the harmed party to respond appropriately. I agree that some negative reviews do not warrant an answer, usually the ones where it is obvious that the reviewer’s words are not to be trusted. Sometimes reaching the former customer works, but usually they want a full refund and even then, it doesn’t guarantee removal. And the committee’s recommendation to use a ready-made answer that says “job responsibilities don’t allow me to answer the way I want” seems boring and analogous to someone saying they’ll take the fifth .

Now I generally understand why the committee decided as it did. The duty of confidentiality is sacred in the legal profession. Since violating this duty can lead to punishment, clients can feel confident that they can be open with their attorney. And former clients should have the opportunity to share their negative experiences with a particular lawyer, as the threat of public criticism should ensure lawyers treat their clients with the care they deserve.

The problem, however, is that the rule prohibiting information disclosure is perceived as too strict for lawyers and overwhelmingly gives clients the benefit of the doubt. Why should clients be able to tell their side of the story while lawyers have to suck them up to protect confidentiality? We are no longer members of a nobility where we are above minor criticism.

My recommendation for a future opinion letter is that there should be very clear guidelines as to which issues should be fully protected and which should not. Not every conversation between an attorney and a client should be subject to attorney privilege. I’ll give an example: opinions on fees. If a potential client complains online that an attorney is not providing free consultations, the attorney is more than welcome to respond with full details of their billing structure as this will not adversely affect a client’s legal issues. Or if a client complains that their attorney has billed too much, they should be able to explain (within reasonable limits) why they billed the way they did.

This should remind lawyers of some rules when it comes to dealing with negative internet comments. First, don’t take customers who mostly leave negative reviews.

Second, no matter how crazy the review looks, the attorney should give a professional answer. While most people still care about the negative reviews these days, they will also look at the response to them. A professional answer has the chance to minimize or negate the effect of a bad rating.

Negative online reviews are the bane of any business, including legal practices. However, the ethical opinions of most bar associations prohibit attorneys from disclosing confidential information. Most lawyers consider this decision to be unfair and ignore the harsh behavior of an angry internet mob. While confidentiality is a cornerstone of legal practice, not every communication is entitled to this protection. Hopefully a future ethics statement will list which issues can be disclosed without violating the attorney’s duty of confidentiality.

Steven Chung is a tax attorney based in Los Angeles, California. He helps people with basic tax planning and tax dispute resolution. He is also personable with people with large student loans. He can be reached by email at [email protected] Or you can connect with him on Twitter (@stevenchung) and connect with him LinkedIn.

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