Nicole Black, The Daily Record Newswire
It used to be that when clients had a complaint about the legal services provided to them, their only lines of recourse were to file an ethics complaint, file a claim in court or tell a few friends about it. Sure they could try to send a letter to the editor about it, but the likelihood it would actually get published was minimal.
That was then, this is now. The Internet has completely changed the ballgame when it comes to feedback on legal services. Legal consumers now have a digital voice — and can easily magnify it by posting reviews on well-traveled sites like Yelp. Long gone are the days when feedback — both good and bad — was hidden behind closed doors. These days, for disgruntled former clients, all the world’s their stage and they can shout their complaints from the virtual rooftops.
So, what’s a lawyer to do —especially when the criticisms are unfair? That’s an issue the New York State Bar Association recently addressed in Opinion 1032 (10/30/2014).
Specifically, the inquiring attorney asked the Committee on Professional Ethics whether, when faced with an online complaint about legal services rendered, may post a response that tends to rebut the accusations by including confidential information relating to that client. In this case, a former client of a law firm who was unhappy with the services provided.
The client had not filed a grievance against the inquiring attorney nor were there any indications that the client intended to seek out any legal recourse against the attorney. But, the client did post a comment on a review website indicating that the client regretted the decision to retain the firm, that the law firm provided inadequate services and communicated inadequately, and did not achieve the client’s goals. The inquiring attorney disputed these allegations and sought to respond to the complaint by sharing facts about the client’s case, but in doing so might need to disclose confidential client information in order to fully rebut the claims.
Unfortunately for the law firm, the committee concluded that under those circumstances, it was impermissible to disclose confidential client communications. The committee’s rationale was based on the application of Rule 1.6 and case law precedent.
The committee acknowledged that in some situations, lawyers may disclose confidential information when disputing claims against them and cited Rule 1.6(b)(5)(i), which is applicable to former clients through Rule 1.9(c). According to this rule, 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.”
However, the committee noted that because the rule focused specifically on “accusations,” the exception set forth in Rule 1.6 was inapplicable: “The language of the exception suggests that it does not apply to informal complaints such as this website posting. The key word is ‘accusation,’ which has been defined as’[a] formal charge against a person, to the effect that he is guilty of a punishable offense,’ Black’s Law Dictionary 21 (5th ed. 1979), or a ‘charge of wrongdoing, delinquency, or fault,’ Webster’s Third International Dictionary Unabridged 22 (2002).”
The committee explained that the exception was intended to aid lawyers who faced serious accusations of misconduct during a formal proceeding, such as a lawsuit. In reaching its decision, the committee wisely compared the online activity to an offline corollary: “Unflattering but less formal comments on the skills of lawyers, whether in hallway chatter, a newspaper account, or a website, are an inevitable incident of the practice of a public profession, and may even contribute to the body of knowledge available about lawyers for prospective clients seeking legal advice. We do not believe that Rule 1.6(b)(5)(i) should be interpreted in a manner that could chill such discussion.”
Once again, the New York State Bar Association’s Committee on Professional Ethics has issued a decision that demonstrates a good understanding of the online platforms involved and their impact on both our profession and our culture. There’s no doubt that the online world isn’t always an easy one for New York lawyers to navigate, but the good news is that our bar association is leading the way by offering guidance through well-reasoned, thoughtful decisions grounded in a solid understanding of the realities of life — and lawyering — in the 21st century.
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Nicole Black is a director at MyCase.com, a cloud-based law practice management platform. She is also of counsel to Fiandach & Fiandach in Rochester and is a GigaOM Pro analyst. She is the author of the ABA book “Cloud Computing for Lawyers,” coauthors the ABA book “Social Media for Lawyers: the Next Frontier,” and co-authors “Criminal Law in New York,” a West-Thomson treatise. She speaks regularly at conferences regarding the intersection of law and technology. She publishes three legal blogs and can be reached at niki@mycase.com.
