Attorney Obtains a Great Result for Client. But Client Gives an Attorney a Negative Review on Yelp. What Can You Do?
As we know, CRPC Rule 3-100 provides that a lawyer “shall not reveal information protected from disclosure by Business and Professions Code § 6068 (e)(1) without the consent of the client” unless the attorney believes it necessary to prevent a criminal act leading to death or substantial bodily injury. Section 6068 (e)(1) of the Business and Professions Code provides, “It is the duty of an attorney to . . . maintain inviolate the confidences, and at every peril to himself or herself to preserve the secrets of his or her client.” Is there any exception if a client posts untrue statements about you or your representation of the client?
A recent opinion by the Los Angeles County Bar Association Professional Responsibility And Ethics Committee No. 52 rendered Dec 6, 2012 addressed the ethical duties of lawyers in connection with adverse comments published by a former client in a non-litigation context and concluded that the attorney may respond to an accusation of malpractice and overbilling as long as the response does not disclose confidential information, does not injure the former client in the matter involving the former representation, and the attorney’s response is proportionate and restrained. Los Angeles Cnty. Bar Ass’n. Formal Op. 52 (2012).)
The committee addressed a scenario in which a lawyer represented a client in a civil case. After the representation ended, the former client made a negative post on a website that discusses lawyers, saying that the lawyer was incompetent and overcharged the client, and suggesting that others avoid using the lawyer. In the absence of a statutory exception allowing disclosure of confidences in response to the former's client's public criticism, the committee said, “Attorney remains obligated to preserve Former Client's confidential information, and Attorney cannot disclose such information in response to that public statement unless authorized to do so by a court's ruling in a judicial proceeding.”
By analogy, the analysis may appear similar to disclosure of information in connection with an attorney’s defense to a fee arbitration claim or in defense of a complaint for legal malpractice. In those cases, although an attorney may disclose some confidential information, the attorney must keep within the lines of the controversy and not stray into areas unrelated to the issues at hand. (Cal. Bus. & Prof. Code § 6068 (e) (West 2012); Cal. Evid. Code § 958 (West 2012); Brockway v. State Bar, (1991)53 Cal. 3d 51, 63.)
If a client posts on yelp or another website that the attorney overcharged, or that the client lost at trial because of the attorney’s negligence, how does the attorney respond without divulging attorney client confidences? In a vacuum it is extremely difficult to fathom an appropriate response. An appropriate response is even more difficult to imagine when considering that Cal. State Bar Formal Opinion No. 2003-161 notes that the attorney’s ethical duty of confidentiality under Business and Professions Code section 6068, subdivision (e) is broader than the attorney-client privilege and extends to cover all of the information gained within the scope of the professional relationship that the client has requested be kept secret, or the disclosure of which would likely be harmful or embarrassing to the client. (citing Cal. State Bar Formal Opns. No. 1993-133, 1986-87, 1981-58, and 1976-37; Los Angeles County Bar Association Formal Opns. Nos. 456, 436, and 386. See also In re Jordan (1972) 7 Cal.3d 930, 940-41.) Practitioners will have to confront this situation on a case-by-case basis keeping in mind the exacting duties imposed by Business and Professions Code § 6068 (e)(1).
-- Andrew Servais
**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.**