Hello everyone and welcome to this Ethics Alert which will discuss the recent New York State Bar Association ethics opinion which states that lawyers cannot reveal client confidences solely to respond to a former client’s criticism on a lawyer-rating website. The opinion is: New York State Bar Association Committee on Professional Ethics Opinion 1032 (10/30/2014) and the opinion is here: https://www.nysba.org/CustomTemplates/Content.aspx?id=52969.
A New York law firm sent a request for an opinion stating that it “believes that a ‘disgruntled’ former client has unfairly characterized the firm’s representation of the former client on a website that provides reviews of lawyers. A note posted by the former client said that the former client regretted the decision to retain the firm, and it asserted that the law firm provided inadequate services, communicated inadequately with the client, and did not achieve the client’s goals. The note said nothing about the merits of the underlying matter, and it did not refer to any particular communications with the law firm or any other confidential information. The former client has not filed or threatened a civil or disciplinary complaint or made any other application for civil or criminal relief.”
“The law firm disagrees with its erstwhile client’s depiction of its services and asserts that the firm achieved as good a result for the client as possible under the difficult circumstances presented. The firm wishes to respond to the former client’s criticism by telling its side of the story if it may do so consistently with its continuing duties to preserve a former client’s confidential information.”
The question posed was: “When a lawyer’s former client posts accusations about the lawyer’s services on a website, may the lawyer post a response on the website that tends to rebut the accusations by including confidential information relating to that client?”
The opinion discussed whether a lawyer “may rely on the ‘self-defense’ exception to the duty of confidentiality set forth in Rule 1.6, which as to former clients is incorporated by Rule 1.9(c). Rule 1.6(b)(5)(i) says that a lawyer ‘may reveal or use confidential information to the extent that the lawyer reasonably believes necessary … to defend the lawyer or the lawyer’s employees and associates against an accusation of wrongful conduct’ to disclose the former client’s confidential information in responding to a negative web posting, even though there is no actual or threatened proceeding against the lawyer.”
The opinion found that the above exception does not apply and that “(a) lawyer may not disclose client confidential information solely to respond to a former client’s criticism of the lawyer posted on a website that includes client reviews of lawyers.”
Bottom line: Lawyers be aware: according to this opinion, a lawyer may not include confidential information in responding to a negative posting by an ex-client (or current client for that matter) on a lawyer-rating website (or other third party website).
Be careful out there.
Disclaimer: this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.
Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
2454 McMullen Booth Road, Suite 431
Clearwater, Florida 33759
Office (727) 799-1688
Fax (727) 799-1670