The New Jersey State Bar Association asked the state Supreme Court to reconsider its approach to responding to negative online reviews, pointing out the proliferation of opportunities to leave such reviews as a basis for permitting attorneys to respond to such reviews without violating the Rules of Professional Conduct. The recommendation is a result of input from the Putting Lawyers First Task Force – convened by NJSBA Past President Jeralyn L. Lawrence – to address the impact on attorney reputations due to false information contained in such reviews.
“After reviewing information provided by the Task Force, the NJSBA believes that a balance has to be struck between the obligation lawyers have to refrain from sharing information about their representation and the widespread reputational harm an attorney could suffer from an unchallenged client’s online review that places the representation in issue and is not factually accurate,” said NJSBA President Timothy F. McGoughran in a letter to Judge Glenn A. Grant, Administrative Director of the Courts.
Currently, such responses are governed by Opinion 738 of the Advisory Committee on Professional Ethics (ACPE), which permits responses by attorneys as long as they do not reveal “information relating to representation” and only discusses information that is “generally known” unless the client consents to the release of such information. Attorneys may reveal confidential information to the extent the attorney believes is reasonably necessary to defend a discipline charge or legal malpractice action brought by the client, to pursue an action seeking fees from the client, or similar matters when the information is relevant to the defense or claim.
The NJSBA says this does not go far enough, however, in the wake of the growing number of blogs and social media platforms that offer a platform for such reviews. Pointing to the Supreme Court of Arizona’s Attorney Ethics Advisory Committee’s opinion issued last December, the Association suggests that an attorney’s duty of confidentiality is rooted in protecting the client and is therefore forfeited by the client in such instances.
“It further suggests that a client may not use confidentiality as both a sword and a shield in legal or disciplinary proceedings, and that should similarly not be permissible when making public accusations of misconduct,” McGoughran said.
The NJSBA requests the Judiciary to consider adopting a modified approach to the issue by combining the ACPE’s conclusion in Opinion 738 with parameters for an additional limited response that maintains client protections as much as possible but allows attorneys to correct misinformation. Such recommendations would provide clarity to RPC 1.6(d)(2) to allow attorneys to respond to online reviews in an objective, measured fashion. Its recommendations are as follows:
- A lawyer should generally limit a response to negative online reviews in a restrained manner, suggesting language proffered by the Pennsylvania Bar in Opinion 2014-200:
- 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.
- If the attorney wishes to provide more information that may include confidential information, lawyers are permitted to do so in limited situations and subject to the following criteria:
- Only where an objectively inaccurate factual statement directly impugns the lawyer’s ability to represent clients — including honesty, competency, integrity, knowledge of the law and similar legal attributes — may a lawyer use confidential client information to respond.
- Before a lawyer is permitted to use confidential client information, a written 30-day warning must be sent to the former client by certified mail, email with delivery receipt, or guaranteed overnight delivery capable of being tracked, identifying the alleged inaccurate information, explain why it is inaccurate, requesting removal of the online post, and warning that if it is not removed within 30 days the former client may be subject to legal action and/or the release of client’s confidential information in order to rebut the post.
- The disclosure of confidential information must be narrowly tailored and limited to what is reasonably necessary to rebut the objectively inaccurate claim(s).
- Lawyers can indicate their disagreement with the post only if it contains objectively inaccurate facts, which would not include more generalized comments or opinions about the lawyer.
The letter may be found at njsba.com.
This is a status report provided by the New Jersey State Bar Association on recently passed and pending legislation, regulations, gubernatorial nominations and/or appointments of interest to lawyers, as well as the involvement of the NJSBA as amicus in appellate court matters. To learn more, visit njsba.com.