As you get into your car at midnight on a Friday after an exhausting mediation, you begin to mentally replay how the day unfolded. Your client Phil Gridiron was sued for $800,000 for failing to pay Fields of Dreams for construction of a full-size football field in the backyard of one of his mansions. In the middle of construction, the city objected because the field would impact an easement. As a result, Fields of Dreams had to make the field 98 yards long instead of 100. Claiming he bargained for an exact regulation field, Gridiron refused to pay, and Fields of Dreams filed a lawsuit.
For most of the day, Fields of Dreams would not budge below $650,000, and the mediator pressed your client hard about emails showing he knew about the easement. You pushed back, noting that an obscure statute governing "gardeners" imposed an obligation on Fields of Dreams to search land records. Your persistence won the day, and your client settled the case by paying $350,000. Knowing how contentious things were, the mediator kept you there until both sides signed a final agreement. Walking out, Gridiron gave you a huge hug and admitted, "I can't tell the difference between 98 and 100 yards, but nobody ever got rich paying full price." As you pull into your driveway, you can only shake your head, glad that you don't have to actually litigate whether Fields of Dreams is a "gardener."
After a weekend of well-earned rest, your cellphone starts exploding. It seems that Gridiron is good friends with the local team's coach, who visited over the weekend and told him, "That field doesn't look quite right." Gridiron is now embarrassed and has settlement remorse, and he posted on his social media and a review website that you are a poor lawyer who is "not aggressive" and does not "go the extra yard for her clients." Furious, you begin to draft a measured but accurate response to post in the comments under Gridiron's review.
Just before hitting "send," you remember that your duty of client confidentiality under ER 1.6 applies not only to attorney-client privileged information but to any information about the representation, whatever its source.1 The point is reaffirmed in numerous ethics opinions. These opinions establish that a lawyer's duty of confidentiality under ER 1.6 is "extremely broad" and prohibits the lawyer from revealing any information about a client representation without client consent.2 No matter how you try to draft a response, or use your 240 characters, you simply cannot address Gridiron's criticisms without revealing at least some information about the case.
But then you also remember there is an exception in ER 1.6, which, in some circumstances, allows an attorney to reveal client information to defend herself from a client's claims. Surely, you are not required to sit on your hands and do nothing while Gridiron unfairly tarnishes your reputation over a case in which you obtained an excellent result?
Recent guidance in this emerging area, however, suggests the lawyer's duty of confidentiality takes precedence and often requires a lawyer to turn the other cheek. The exception in ER 1.6 only permits a lawyer to reveal client confidential information to "establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client." ER 1.6(d)(4). The ABA Standing Committee on Ethics recently concluded that a negative online review does not rise to the level of a "controversy" between a lawyer and client.3 And, in any event, the committee found that a public response by the lawyer is not reasonably necessary to establish a defense.4
The Arizona Ethics Advisory Committee, albeit over a vigorous dissent, has reached a similar but slightly more permissive conclusion. The committee suggested a lawyer may respond but should not provide a point-by-point rebuttal. Instead, after stating that client confidentiality rules do not permit a detailed response, a lawyer may say something along the following lines: "I do not believe that the post presents a fair and accurate picture of the events."5
These authorities establish that lawyers must be especially cautious when responding to online reviews or criticism. Even where your client unfairly fails to recognize that you scored a touchdown, you may need to let your client make the last, extra point.
1. See ER 1.6 cmt. 3.
2. E.g., Arizona Ethics Ops. 95-02; 97-05.
3. ABA Formal Op. 496 (Jan. 13, 2021).
4. Id., citing comment 16 to ABA Model Rule 1.6.
5. Arizona Attorney Ethics Advisory Committee Op. EO-19-0010. At present, this opinion is advisory.
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