Ethical Considerations When Responding to Negative Attorney Reviews 

You are a family law attorney in private practice who is working to build an on-line presence that includes positive attorney reviews.  One day, you receive a notification that a former client posted a negative review on a free website that rates attorneys. The review by “Maxy” states:

 

I hired this attorney to represent me in a divorce action. He was just hungry for money! He advised me to hire an investigator and quoted me a price of $1,000.00 for the investigator’s services and this was on top of his fees!

 

You had a former client named, Maxy Mercer.  Early in your representation, you advised her to contact an independent investigator to conduct a separate investigation into her allegations against her spouse.  You sent Mercer an email with the independent investigator’s contact information but you did not quote a price for his services.  Six months after you filed Mercer’s divorce action, she encouraged you to file a motion titled “Motion for a New Judge Because the One Assigned is Corrupt and Engaged in a Conspiracy.” Mercer admitted she had no facts to support the motion.  Believing the motion was frivolous, you advised her you would not file it on her behalf.  Mercer fired you shortly thereafter.

Your repeated requests to the website to have this negative review removed have fallen on deaf ears.  Pursuant to its policy, however, you were encouraged to respond to the review by posting a written reply.  You would like to post information to defend your reputation without compromising your ethical obligations. Your preliminary research reveals the following:

The duty of undivided loyalty prevents a lawyer from harming a former client

An attorney has an undivided duty of loyalty to his or her client. (Goodley v. Wank & Wank, Inc. (1976) 62 Cal.App.3d 389, 395-396.)  This duty does “not end with the matter in which the lawyer may have been employed.” (Oasis West Realty, LLC v. Goldman, (2011) 51 Cal.4th 811, 821, quoting Wutchumna Water Co. v. Bailey (1932) 216 Cal. 564, 573-574.)  Indeed, even after an attorney has severed his or her relationship with a client, an attorney “may not do anything which will injuriously affect his former client in any matter in which he formerly represented [the client], nor may he at any time use against his former client knowledge or information acquired by virtue of the previous relationship.” (Id.)

 

The duty of loyalty required to a former client who posts a negative review of a lawyer is discussed in San Francisco Bar Opinion No. 2014-1. The opinion makes clear that a lawyer must use greater caution when contemplating how to respond if the former client’s matter has not concluded.  Otherwise, the lawyer risks harming the former client with respect to work previously performed by the lawyer. (San Francisco Bar Opn. No. 2014-1.) The opinion notes that a response that “does not involve the disclosure of any confidential information, may be inappropriate” where the former clients matter is on-going. (Id.)

 

In contemplating a response to the negative review, the opinion instructs the lawyer to do “a fact specific analysis” of the following considerations:

 

(1) the status and nature of the on-going proceedings, (2) the content of the Attorney's contemplated response, and (3) any negative impact the response could have on the on-going proceedings. 

 

(San Francisco Bar Opn. No. 2014-1.)

 

Business and Profession Code section 6068 subdivision (e)(1) protects client confidences

 

Business and Professions Code section 6068 subdivision (e)(1) imposes a duty on lawyers “[t]o maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.” (Bus. & Prof. Code § 6068, subd. (e)(1).)  “Client secrets means any information obtained by the lawyer during the professional relationship or relating to the representation which the client has requested to be inviolate or the disclosure of which might be embarrassing or detrimental to the client.” (Cal. State Bar Formal Opn. No. 2016-195; internal citations omitted.)  Furthermore, A "confidence" or "secret" can include publicly available information communicated in confidence.  (Matter of Johnson (Rev. Dept. 2000) 4 Cal. State Bar Ct. Rptr. 179, 189.)  The duty applies even when the attorney-client relationship terminates.

 

The only exception to the duty to keep “inviolate” client confidences under Business and Professions Code section 6068 subdivision (e)(1) is when the attorney reasonable believes disclosure is necessary to prevent a criminal act that is “likely to result in death of, or substantially bodily harm to, an individual.” (Bus. & Prof. Code § 6068, subd. (e)(2).)

 

This fundamental duty is much broader than the attorney-client privilege, a statutorily created evidentiary rule that protects disclosure of "confidential communication" defined in the evidence code as “information transmitted between a client and his or her lawyer in the course of that relationship and in confidence. . . .” (Cal. Evid. Code § 952.)  Privileged communications include legal opinions formed during the course of the attorney-client relationship. (See Fireman's Fund Ins. Co. v. Sup.Ct. (2011) 196 Cal.App.4th 1263, 1273 [finding legal opinions formed by counsel during representation are protected even when not transmitted to client].)  The attorney-client privilege has several exceptions and is subject to waiver.[1]

 

California Rule 1.6 imposes a duty of confidentiality absent informed consent

 

The duty of confidentiality is also embodied in the California Rules of Professional Conduct. Rule 1.16 states, “(a) A lawyer shall not reveal information protected from disclosure by Business and Professions Code section 6068, subdivision (e)(1) unless the client gives informed consent, or the disclosure is permitted by paragraph (b) of this rule.[2]” (Cal. Prof. Rule of Conduct, Rule 1.16(a).)

 

Thus, this rule permits disclosure only under two scenarios: (1) where the client gives informed consent or (2) “to the extent that the attorney reasonably believes the disclosure is necessary to prevent a criminal act that the attorney reasonably believes is likely to result in death of, or substantial bodily harm to, an individual. . . .” (Cal. Prof. Rule of Conduct, Rule 1.16.)

 

The Rules of Professional conduct define informed consent as “a person’s agreement to a proposed course of conduct after the lawyer has communicated and explained (i) the relevant circumstances and (ii) the material risks, including any actual and reasonably foreseeable adverse consequences of the proposed course of conduct.” (Cal. Prof. Rule of Conduct, Rule 1.0.1.)

 

ABA Model Rule 1.6 (b) lists various exceptions permitting disclosure of confidential communications

Unlike California Rule 1.6, ABA Model Rule 1.6(b) contains various exceptions permitting disclosure of confidential information, including but not limited to: “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.”

ABA Formal Opinion 480 examined the issue of attorneys publicly posting confidential information in online publications.  The opinion suggests these exceptions are less likely to apply in an online setting by observing: “[b]ecause it is highly unlikely that a disclosure exception under Rule 1.6(b) would apply to a lawyer’s public commentary, we assume for this opinion that exceptions arising under Rule 1.6(b) are not applicable.” (ABA Formal Opn. No. 480.)

 

In light of the above ethical considerations, can you post the following information in your public reply to Mercer’s negative review?

 

You sent Mercer an email with the independent investigator’s contact information but you did not quote a price for his services.

 

This information is protected by the attorney-client privilege and the duty of confidentiality.  It was conveyed by you to Mercer and relates to your prior representation of her divorce action.  If disclosed, it will likely be detrimental to Mercer because it essentially characterizes her as a liar. The detriment will be exacerbated if her divorce action is still pending because it calls into question her credibility and as such, would also be embarrassing to her. For the same reasons, disclosure of this information would breach your duty of loyalty to Mercer. Thus, unless you obtain Mercer’s agreement to consent to disclose this information as required under Rule 1.0.1—requiring you inform her of the “relevant circumstances” and “material risks” of disclosing this information— you may not reveal this information in your public reply.

 

Mercer encouraged you to file a motion titled “Motion for a New Judge Because the One Assigned is Corrupt and Engaged in a Conspiracy.”  Mercer admitted she had no facts to support the motion.  Believing the motion was frivolous, you advised her you would not file it on her behalf. 

 

The information that Mercer encouraged you to file this motion and admitted she had no facts to support it is both protected by the attorney-client privilege and your duty of confidentiality.  You learned of this information during your prior professional relationship with Mercer.  If this information is disclosed, it will likely be detrimental to Mercer because it also calls into question her credibility, as she wanted a motion filed that had no supporting facts.  Disclosure would also likely be detrimental to her divorce action if still pending.  For the same reasons, disclosure of this information would breach your duty of loyalty to Mercer. Moreover, your legal opinion that the motion was frivolous was formed during the course of the attorney-client relationship is disclosed. Thus, it is also protected by the attorney-client privilege and as such, is confidential. (Fireman's Fund Ins. Co. v. Sup.Ct. (2011) 196 Cal.App.4th 1263, 1273.)

 

Unless you obtain Mercer’s consent to disclose this information as required under Rule 1.0.1, you may not reveal this information in your public reply.

 

In summary, your ethical obligations do not prevent you from publicly responding to Mercer’s review. You are ethically obligated, however, to cautiously evaluate any information you disclose in order that it does not run afoul of your duty loyalty or confidentiality, as well any other ethical obligations under the California Rules of Professional Conduct and the State Bar Act.  Ultimately, you may decide the safest recourse is not to publicly reply at all.    

 

[1] Evidence Code section 912 permits a waiver of a privileged communication “if any holder of the privilege, without coercion, has disclosed a significant part of the communication or has consented to disclosure made by anyone.” (Cal. Evid. Code § 912.)

 

[2]  Rule 1.6 (b) states: “A lawyer may, but is not required to, reveal information protected by Business and Professions Code section 6068, subdivision (e)(1) to the extent that the lawyer reasonably believes the disclosure is necessary to prevent a criminal act that the lawyer reasonably believes is likely to result in death of, or substantial bodily harm to, an individual, as provided in paragraph (c).” (Cal. Prof. Rule of Conduct, Rule 1.6(b).)

 

Alara Chilton is the founder and owner of  the Law Office of Alara T. Chilton. 

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**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**