May a Texas lawyer respond publicly to a former client’s adverse comments on the internet? If so, what information may the lawyer disclose?
STATEMENT OF FACTS
A former client posted negative comments about a Texas lawyer on an internet review site. The lawyer believes that the client’s comments are false. The lawyer is considering posting a public response that reveals only enough information to rebut the allegedly false statements.
The internet allows consumers to publish instant reviews and comments about goods or services. Once posted, consumer reviews are usually searchable, easily accessible to other potential consumers, and effectively permanent. With the internet becoming an increasingly common source of referrals for legal services, consumer reviews on various sites have assumed a greater importance for attorneys in recent years.
Vendors of commercial goods or services are relatively free to respond to negative reviews as they see fit. But when a former client posts a negative review about a lawyer, the lawyer’s duty of confidentiality limits the information the lawyer may reveal in a public response.
In general, Rule 1.05 of the Texas Disciplinary Rules of Professional Conduct defines the scope and extent of a Texas lawyer’s duty of confidentiality. Rule 1.05(a) broadly defines “confidential information” to include not only information protected by the lawyer-client privilege but also “all information relating to a client or furnished by the client, other than privileged information, acquired by the lawyer during the course of or by reason of the representation of the client.”
A lawyer may not publicly reveal the confidential information of a former client unless expressly permitted by an exception stated in Rule 1.05. Absent an applicable exception found in Rule 1.05, a lawyer may not post a response to a negative review that reveals any information protected by the lawyer-client privilege, or otherwise relating to a client or furnished by the client or acquired by the lawyer during the course of or by reason of the representation of the client. This is true even though the information may have become generally known. Compare Rule 1.05(b)(3) (allowing lawyer to use confidential information to the disadvantage of a former client after the information has become generally known) with Rule 1.05(b)(1) (generally prohibiting revelation of confidential information absent an applicable exception).
No exception in Rule 1.05 allows a lawyer to reveal information in a public forum in response to a former client’s negative review. The only exceptions potentially applicable to the facts presented in this Article appear in Rule 1.05(c) and (d):
(c) A lawyer may reveal confidential information:
(5) To the extent reasonably necessary to enforce a claim or establish a defense on behalf of the lawyer in a controversy between the lawyer and the client.
(6) To establish a defense to a criminal charge, civil claim or disciplinary complaint against the lawyer or the lawyer’s associates based upon conduct involving the client or the representation of the client.
(d) A lawyer also may reveal unprivileged client information:
(ii) defend the lawyer or the lawyer’s employees or associates against a claim of wrongful conduct;
(iii) respond to allegations in any proceeding concerning the lawyer’s representation of the client; or
(iv) prove the services rendered to a client, or the reasonable value thereof, or both, in an action against another person or organization responsible for the payment of the fee for services rendered to the client.”
It is the opinion of the Committee that each of the exceptions stated above applies only in connection with formal actions, proceedings, or charges. The exceptions to Rule 1.05 cannot reasonably be interpreted to allow public disclosure of a former client’s confidences just because a former client has chosen to make negative comments about the lawyer on the internet. This approach is consistent with the guidance issued by the ethics authorities in other jurisdictions.
See, e.g., Los Angeles County Bar Association Professional Responsibility and Ethics Committee Formal Opinion No. 525 (Feb. 2013); Bar Association of San Francisco Ethics Opinion 2014-1 (Jan. 2014); New York State Bar Association Ethics Opinion 1032 (Oct. 2014); and Pennsylvania Bar Association Formal Ethics Opinion 2014-200 (2014).
Accordingly, a lawyer may not reveal confidential information, as that term is defined in Rule 1.05, merely to respond to a former client’s negative review on the internet. A lawyer may, however, post a response to a former client’s negative review so long as the response is proportional and restrained and does not reveal confidential information or violate any other provision of the Texas Disciplinary Rules. For example, it would not violate the Texas Disciplinary Rules to post the following response, suggested in Pennsylvania Bar Association’s Formal Ethics Opinion 2014-200 (2014):
“A lawyer’s duty to keep client confidences has few exceptions and in an abundance of caution I do not feel at liberty to respond in a point-by-point fashion in this forum. Suffice it to say that I do not believe that the post presents a fair and accurate picture of the events.”
Nothing in this article is intended to suggest that a lawyer may not seek judicial relief against a former client who commits defamation or other actionable misconduct through an internet publication.
Under the Texas Disciplinary Rules of Professional Conduct, a Texas lawyer may not publish a response to a former client’s negative review on the internet if the response reveals any confidential information, i.e., information protected by the lawyer-client privilege, or otherwise relating to a client or furnished by the client or acquired by the lawyer during the course of or by reason of the representation of the client. The lawyer may post a proportional and restrained response that does not reveal any confidential information or otherwise violate the Texas Disciplinary Rules of Professional Conduct.
INQUIRY TO TCDLA ETHICS COMMITTEE FROM AGGRIEVED LAWYER
Attached is the review my client left. My question is whether I can disclose in my response the fact that her case was dismissed and expunged.
I was hoping to receive the same level guidance, representation, and communication from [attorney X] as his previous reviews have indicated. It is very disappointing to be writing this review. I am confused as to why I had a completely lackluster and different experience. Any time I had a question for him I would receive a curt clipped response as if I was bothering him. I always had the feeling I had made a bad decision in having him represent me because of this. To his credit he was very responsive in texting back and performed the basic functions of his role, which for my issue were not very complicated. He did not spend $2500 worth of time on me and if so, I’ve yet to see his hours. Unfortunately, he did not communicate on issues that he knew about at the time would still impact me. I received very little communication on what to look out for and when asked about it he shared that because he gave me a discount, I should have no problem paying to have an error removed from my background now. Time is one thing that cannot be recovered. He was more focused on money though. I received the bare minimum from him. Overall, I feel he was apathetic and unhelpful in his representation of me. I hope no other client is treated this way.
RESPONSE OF COMMITTEE MEMBER JOE CONNORS
Please get back to us later after your ex-client then files another on-line response with many more details to further denigrate you in so many new ways.
Like the other responses from the Ethics Committee attorneys who took time to share their experience and knowledge with you, I also suggest YOUR SILENCE would be best. It will stop this matter now rather than its continuing with another bad post by your ex-client.
You asked for our advice but refuse to follow it so be forewarned: “This one is not over with posting your fine words.”
I have been there where you currently are. My silence stopped the need for my denigrating ex-client and non-client to get in each last evil word on-line about how bad I was. You ought to just be silent, I request.
REPLY OF INQUIRING ATTORNEY
Aside from ethics rules, I believe it is a misdemeanor to divulge an expunction. So, I do not think it would be wise to include in a response that I got a criminal case dismissed and expunged. I will just use the one suggested by Ethic opinion 662:
A lawyer’s duty to keep client confidences has few exceptions and in an abundance of caution I do not feel at liberty to respond in a point-by-point fashion in this forum. Suffice it to say that I do not believe that the post presents a fair and accurate picture of the events.
RESPONSE OF COMMITTEE MEMBER BETTY BLACKWELL
I have just recently reviewed the State Bar rules about this, and they are extremely strict. About the only answer you can give is that “professional rules do not allow me to respond as I would like.”
Anything you post on the website can be seen as a violation of confidentiality. The only other thing they recommended was reaching out directly to the client and asking if you could talk to her about the review. But it is really not recommended and could be an ethical violation to respond on the site where the review is posted,
I’m so sorry. We have all had them. It is frustrating, but better to ignore.
I have been told the best thing to do is get better reviews posted. The bar does say that it is okay to request clients to post good reviews, though it is not okay to pay for good reviews.