In a case recently reported in the Gazette, a solicitors’ firm won £25,000 in damages from a former client who had posted a negative report about the firm on Trustpilot, which started with the words ‘A total waste of money another scam solicitor’.
There is no evidence from the case report that the firm tried to defend itself on Trustpilot. It wanted the review removed, and when it was not, it wanted damages.
But what if the firm had tried to defend itself on Trustpilot? The American Bar Association (ABA) has just issued a formal opinion for US attorneys - ‘Responding to Online Criticism’ - about how to behave in relation to negative reviews, which can be easily translated across to our own position.
Before we get to what the ABA advises, there is an amusing litany of what not to do online from real-life US disciplinary proceedings that form a background to its recommendations. The cases range beyond responding to online criticism to other forms of online activity. The disciplinary sanction follows each story, and are a useful lead-up to why the ABA felt its opinion was necessary in the first place:
- a lawyer actively manipulated his Avvo reviews by monetarily incentivising positive reviews, and punishing clients who wrote negative reviews by publicly exposing confidential information about them, and including numerous false statements in the responses to the negative reviews - disbarred;
- a lawyer disclosed confidential information beyond what was necessary to defend herself on Avvo in response to a client’s negative reviews, as follows: ‘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 so upset about’ - public reprimand;
- a lawyer responded to online reviews by former clients by revealing criminal charges made against them, for instance that a client wrote a cheque that bounced, and that a client committed other unrelated felonies – suspended for 6 months;
- an assistant public defender blogged about her clients’ cases on a website open to the public, including providing confidential information, some of which was detrimental to clients and some of which indicated that the lawyer may have knowingly failed to prevent a client from making a misrepresentation to the court - suspended for 60 days;
- a lawyer sent an e-mail disclosing to members of her bar’s workers’ compensation listserve personal and medical information about a client whom she named, indicating that the client wanted a new lawyer - suspended for 90 days.
So it is clear that US lawyers may need guidance. But we solicitors can benefit from what the ABA has produced, too.
The ABA’s opinion is based around the lawyer’s duty of confidentiality. If lawyers do respond online to criticism, the ABA says that they must not disclose information either relating to a client matter, or that could reasonably lead to the discovery of confidential information by another person.
The ABA suggests various types of best practice which avoid this pitfall:
- lawyers should just not respond to a negative post, because doing so is likely to draw more attention to it and invite further exchanges with the hostile former client;
- lawyers can request that the website or search engine host remove the information;
- lawyers can indicate that professional considerations preclude a response;
- the lawyer can post an invitation to the poster to contact the firm privately to resolve the matter.
The American rules for permitted disclosure of confidential information have a different foundation to our own. For instance, the ABA’s Model Rule 1.6, which deals with this, says that ‘A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary’ for a range of explicit reasons, for instance, to prevent certain death or substantial bodily harm.
Included in this list is the exception which allows disclosure ‘to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client’. The question is whether negative online criticism amounts to such a controversy. The ABA opinion quotes approvingly from a New York State Bar Association opinion, which says that unflattering comments ‘are an inevitable incident of the practice of a public profession’ and may even contribute to knowledge about lawyers.
Essentially, the guidance the ABA has now issued is to the effect that negative online criticism does not on its own amount to a relevant controversy between lawyer and client, and therefore does not permit the disclosure of confidential information.
Even though our own rules have a different basis, the best practice guidance in the ABA note contains handy tips and reminders, and particularly its four steps for best practice.
Jonathan Goldsmith is Law Society Council member for EU matters and a former secretary general of the Council of Bars and Law Societies of Europe. All views expressed are personal and are not made in his capacity as a Law Society Council member, nor on behalf of the Law Society