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Attorney Rating Systems: If You Play, What Should You Say? Part 3

By September 13, 2015 No Comments

Reprinted with permission from the GPSOLO eReport, American Bar Association.

This article is the last of three installments designed to provide insight into recent ethical opinions governing attorney rating systems as well as specific factors attorneys should consider in deciding whether to participate in these systems, and if and how to respond to online criticism on these websites. Click here to access the first installment. Click here to access the second installment.

  • What do four recent ethical opinions say concerning how attorneys may respond to a negative review on an attorney rating website?
  • What are four tips for attorneys to consider in both avoiding negative reviews and coping with a review that is posted?                                   

In my previous articles in this series, I discussed two recent ethics opinions on lawyers’ participation in attorney rating systems: Utah State Bar Ethics Advisory Opinion 14-04 and the Washington State Bar Association’s 2014 Advisory Opinion 201402. This article focuses on another aspect of attorney rating websites: the negative client review.

Molly Meticulous, a probate attorney, worked diligently in representing David Dissatisfied, the personal representative of his father’s estate. As the probate progressed, Molly and David had frequent disputes. David thought that the formalities of the probate process, such as setting up an estate account and preparing an inventory of estate assets, were unnecessary. He believed Molly’s instructions were simply designed to increase her fees. After several months of negative interactions, David then refused to respond to Molly, and she was unable to reach him for several months. Molly decided to withdraw from representation. Three months later Molly noticed, to her dismay, that David had posted a scathing review of Molly’s services on an attorney rating website, stating that Molly “lied to me about the probate requirements,” “overcharged the estate,” and “abandoned me in the middle of the proceeding.” He said, “Never hire this attorney. She is incompetent in everything other than sending bills.” Molly, feeling both livid and embarrassed, began typing a responsive post in her defense. Then she paused. “Should I respond? Should I post this?” she asked herself.1

Even if an attorney chooses not to participate in an attorney rating website such as Avvo, a client may still publish an online review of that attorney’s performance. If a client’s negative review is published on Avvo, an attorney who has not claimed his or her profile cannot respond—which may be a blessing in disguise. If the profile has been claimed, the attorney may respond. But just because a lawyer can respond, does mean that he or she should respond? And, if the lawyer decides to respond, what type of response is appropriate and compliant with the ethical rules?

 

What Do Four Recent Ethical Opinions Say Concerning How Attorneys May Respond to a Negative Review on an Attorney Rating Website?

Four recent ethics opinions provide guidance to help lawyers stay within ethical boundaries if a current or former client posts a negative review. First, the Los Angeles County Bar Association has opined that an attorney may respond to a former client’s negative posting “so long as: (1) Attorney’s response does not disclose confidential information; (2) Attorney does not respond in a manner that will injure Former Client in a matter involving the former representation; and (3) Attorney’s response is proportionate and restrained.”2

Second, the Bar Association of San Francisco noted,

Attorney’s disclosure in a public online forum has no judicial supervision and is accessible to anyone. Although the former client’s assertion could impact Attorney’s reputation, it is the Committee’s opinion that such potential impact, by itself, is not of a nature that reasonably requires Attorney to disclose in a public forum what would otherwise be confidential information.3

This opinion concluded,

Attorney is not barred from responding generally to an online review by a former client where the former client’s matter has concluded. . . . Attorney’s on-going duty of confidentiality prohibits Attorney from disclosing any confidential information about the prior representation absent the former client’s informed consent or a waiver of confidentiality. . . . If the matter previously handled for the former client has not concluded, it may be inappropriate under the circumstances for Attorney to provide any substantive response in the online forum.4

Third, the New York State Bar Association determined that the “self-defense” exception to the ethical requirement of confidentiality applied to formal proceedings rather than “informal complaints such as this website posting,” and concluded, “A lawyer may not disclose confidential information solely to respond to a former client’s criticism of the lawyer posted on a website that includes client reviews of lawyers.”5 Fourth, the Pennsylvania Bar Association also emphasized the duty of confidentiality, stating: “While it is understandable that a lawyer would want to respond to a client’s negative online review about the lawyer’s representation, the lawyer’s responsibilities to keep confidential all information relating to the representation of a client, even an ungrateful client, must constrain the lawyer.”6

 

What Are Four Tips for Attorneys to Consider in Both Avoiding Negative Reviews and Coping With a Review That Is Posted?

Keeping these four opinions in mind, should Molly Meticulous respond to David Dissatisfied’s unfair and inaccurate review of her work? If so, what should she say? Here are four tips for consideration:

  • Taking a step back, Molly should always keep in mind that every client has the ability to post a review—even if it is nonsense. Molly should use every available tool in her client intake process, including relying on her intuition and best instincts, and strongly err on the side of caution to avoid representing these types of “toxic” clients in the first place. And, when she finds herself representing a toxic client, if the ethical rules allow for it, she should seek to withdrawimmediately. The longer she waits and hopes the situation will improve, the more likely it is that she will face a negative review.
  • Molly should strongly consider not responding to the negative post. If she has not claimed her profile on the website, it is doubtful that it is worth it to claim the profile for the sole purpose of posting a response.7 Perhaps her response simply gives the posting more credence than it deserves?
  • If Molly does respond, she should: (1) make it short and sweet; (2) cite and explain the ethics rule governing confidentiality; and (3) state that she disagrees with the post, but cannot offer further explanation or defense because she intends to abide by her duty of confidentiality to David. Perhaps she might add that she would be happy to discuss this issue directly with David, and invite him to contact her by telephone or e-mail.8
  • Molly should also: (1) wait at least 24 hours before posting a response; (2) review the pertinent ethical rules and advisory opinions; and (3) without revealing client confidences, allow a trusted colleague to review the proposed response to ensure it is compliant with the rules and reflects Molly’s high degree of professionalism.

Twenty years from now, when Molly is close to retirement, a young couple interested in retaining her services may research her online and read her responsive post to this negative client review. This post will become a part of Molly’s legacy, as she builds her professional reputation throughout her career. If Molly chooses to exercise restraint and grace in relation to the negative review, and instead focuses that energy and time on doing quality work for her appreciative clients, that choice will pay immeasurable dividends for her in the future.

 

Endnotes

1. This example is purely fictional, and is not based upon any actual occurrence.

2. Los Angeles County Bar Association, Professional Responsibility and Ethics Committee, Opinion No. 525, Dec. 6, 2012, p. 4.

3. The Bar Association of San Francisco, Opinion 2014-1, Jan. 2014, p. 4.

4. Id. at p. 5.

5. New York State Bar Association, Committee on Professional Ethics, Opinion 1032, Oct. 30, 2014, p. 2, 4.

6. Pennsylvania Bar Association, Formal Opinion 2014-200, p. 6.

7. Also, as explained in prior articles in this series, there may be ethical prohibitions to claiming the profile.

8. Pennsylvania Bar Association, Formal Opinion 2014-200, p. 1, offers an alternate proposed response to a negative review.

This post is for informational purposes and does not contain or convey legal advice. The information herein should not be used or relied upon in regard to any particular facts or circumstances without first consulting with an attorney.

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