Life as a lawyer got more complicated with the advent of social
media, where prospective clients (and anybody else) can post and read
comments about you, pro and con. These can be seen, anonymously, by
hundreds of potential clients. For better or worse, ethical problems have
accompanied the process.
Sending in good reviews about yourself. You read that correctly—fake
reviews written by the lawyers being reviewed. An article in Lawyers.com
1
tells of a lawsuit brought by Yelp alleging that San Diego’s McMillan Law
Group had its own employees, purporting to be clients, write positive Yelp
reviews on the firm’s link. Also alleged is that the firm is among some San
Diego firms that trade “glowing reviews” of each other though they have
never had relationships as clients or co-counsel. The suit claims, among
other things, that this was false advertising entitling it to punitive damages.
Retaliating for bad client reviews. The ABA Journal online2 reports on
an Illinois employment lawyer who responded on her Avvo page after a
former client gave her a bad review and refused to remove it unless he got
his money back. The response: “I dislike it very much when my clients
lose, but I cannot invent positive facts for clients when they are not there.
I feel badly for him, but his own actions in beating up a female co-worker are what caused the consequences he is now upset about.” The Illinois
disciplinary authorities responded,
3 alleging the lawyer violated the ethical
rules regarding client confidentiality and respect for the rights of others.
4
And in Georgia,
5 a lawyer responded to a client’s criticism on several “
consumer websites,” giving what the opinion calls “personal and confidential
information” about the client.” The lawyer admitted wrongdoing and
agreed to a reprimand, but the court remanded the matter for a more
severe sanction based on unrelated charges.
Discussing your clients online. In a reported decision,
6 a public defender was disciplined after she blogged about her traumatic trial experience
when her client, accused of home invasion and armed robbery,
punched her in the face in open court. Her attempts to withdraw
as counsel, claiming acute stress disorder, were denied, and she
was forced to represent the client in a retrial. The Wisconsin
Supreme Court wasn’t impressed, however, and found that
though the lawyer said she tried to conceal the identity of
the client, posting the story violated client confidentiality. In
Oregon,
7 a lawyer sent an email to the 275-member Oregon
State Bar Workers Compensation Section listserv to warn them
about a former client whom she described as “difficult” and
whom she suspected of “attorney shopping.” The lawyer was
disciplined after she admitted violating the client confidentiality
rules and her duties to former clients.
So what are the rules? First is the problem about posting false
endorsements on the Internet. ER 7. 1 of the Arizona Rules of
Professional Conduct8 forbids making or permitting to be made
a false or misleading communication about a lawyer or the
lawyer’s services. Posting phony “client” endorsements would
qualify as a violation of the rule, as well as ER 8.4(c) (engaging
in conduct involving dishonesty, fraud, deceit or misrepresenta-
EYE ON ETHICS by David D. Dodge
tion) and ER 8.4(d) (engaging in conduct
prejudicial to the administration of justice).
For retaliating against critical reviews, ER
1. 6(a) forbids us from revealing any information relating to a client representation.
There are exceptions, only one of which is
relevant here, in ER 1. 6(d)( 4), allowing a
lawyer to reveal such information reasonably
necessary to establish a defense on behalf of
the lawyer in a “controversy” between the
lawyer and a client. Whether an Internet
criticism is a “controversy” covered by the
exception may not always be clear, but
Comment [ 12] to ER 1. 6 gives us a clue: It
says that a lawyer doesn’t have to await the
commencement of “an action or proceeding” to defend herself, a view confirmed by
our State Bar Ethics Committee.
9 The same
exception would hold true for the duties of
confidentiality found in ER 1. 9(c) when a
former client makes the complaint.
The bottom line: Be careful if and when
you respond online to client criticisms, be
they on- or offline. The best response may
be to try to resolve the problem and ask that
the critical posting be removed. Barring
that, the best exit from the situation may be
a professional and dignified response, without any “zingers” about what brought the
client to you in the first place or that the
client would find embarrassing. AZ AT
Ethics Opinions
and the Rules
of Professional
Conduct are
available at
www.azbar.org
/Ethics
David D. Dodge provides consultation
to lawyers on legal ethics, professional
responsibility and standard of care
issues. He is a former Chair of the
Disciplinary Commission of the Arizona
Supreme Court, a current Co-Chair of the
State Bar Member Assistance Committee,
and practices at David D. Dodge, PLC
in Phoenix.
Web-Based Client Reviews
endnotes
1. http://blogs.lawyers.com/2013/09/
yelp-sues-for-fake-reviews
2. www.abajournal.com/news/article/
lawyers-alleged-response-to-bad-avvo-review
3. In re Tsamis, Comm. No. 2013PR00095,
Ill. Att’y Registration & Disciplinary
Comm’n.
4. This is ER 4. 4 in Arizona and applies when
a lawyer does something disrespectful to
“any other person” while “representing
a client.” Thus, that part of the charge
probably wouldn’t apply here.
5. In re Skinner, 29 LAW. MAN. PROF.
CONDUCT 192 (Ga., Mar. 18, 2013).
6. Office of Lawyer Regulation v. Peshek,
798 N.W.2d 879 (Wis. 2011).
7. In re Quillinan, 20 DB 288 (Ore. 2006).
8. Rule 42, Ariz.R.S.Ct.
9. Ariz. Ethics Op. 93-02 (Mar. 17, 1993)
(assertions against an attorney that he acted
incompetently are sufficient to establish a
“controversy” under ER 1. 6(d)).
