Ethics Question of the Month - November 2019
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Lawyer A represents Client Z in a difficult, contentious divorce case. When the case settles, Lawyer A closes the file. Lawyer A later discovers that Client Z has posted the following on a review website:
“Lawyer A is awful and I cannot recommend her. She told me my ex would not get visitation rights but my terrible ex (who everyone knows should not be around children) still gets the kids every other weekend. She forced me to settle my case even though she previously told me we would win at trial. She did so because she knew I was running out of money. Lawyer A doesn’t care about her clients or their children; she just wants to make money off the misery of others.”
Lawyer A considers posting one of the following responses:
- “I am sorry that you are unhappy with the outcome of your case, but I am more than willing to discuss any issues you have with my representation privately.”
- “Because our ethics rules prevent me from revealing any client confidences publicly, I am not comfortable discussing these matters in this forum. But for the record, I do not believe that your post presents a fair and accurate picture of the events you describe.”
- “I never said that your ex would not get visitation rights, or that we would win at trial. Under the circumstances, I got you the best possible outcome you could have expected. You told me you chose to settle because you were worried about the cost of going to trial. You are now dealing with the consequences of your own choice, not any poor performance by me ”
- “Everything you said here is false. You were uncooperative throughout and changed your story and your mind frequently. You complained about my bills constantly, and even though I got a great result for you, you attack me online hoping that you won’t have to pay me the money you still owe me. Well, it won’t work.”
Which of these is most accurate?
A. None of the responses above is permitted; lawyers should not discuss anything about their clients’ cases or even acknowledge online comments and criticisms.
B. Option 1 is acceptable, but the rest are not.
C. Options 1 and 2 are acceptable because the lawyer didn’t reveal any confidential information in the responses.
D. Options 1, 2 and 3 are acceptable because the attorney limited her online discussion to items the client raised first.
E. All are acceptable because the ethics rules permit lawyers to disclose client confidences when defending themselves against a client’s accusations of wrongdoing.
The advent of online reviews has created a particularly thorny ethical dilemma for attorneys who want to preserve their reputations in the face of public criticism. The internet allows anyone to broadcast negative messages to the world with no filters and little or no recourse for an attorney who wishes to stay within the boundaries of the ethics rules.
The primary consideration here is Rule 1.05 of the Texas Disciplinary Rules of Professsional Conduct (emphasis added):
a) Confidential information includes both privileged information and unprivileged client information. Privileged information refers to the information of a client protected by the lawyer-client privilege of Rule 5.03 of the Texas Rules of Evidence or of Rule 5.03 of the Texas Rules of Criminal Evidence or by the principles of attorney-client privilege governed by Rule 5.01 of the Federal Rules of Evidence for United States Courts and Magistrates. Unprivileged client information means all information relating to a client or furnished by the client, other than privileged information, acquired by the lawyer during the course of or by reason of the representation of the client.
(b) Except as permitted by paragraphs (c) and (d), or as required by paragraphs (e), and (f), a lawyer shall not knowingly:
(1) Reveal confidential information of a client or a former client to:
(i) a person that the client has instructed is not to receive the information; or
(ii) anyone else, other than the client, the clients representatives, or the members, associates, or employees of the lawyers law firm.
(2) Use confidential information of a client to the disadvantage of the client unless the client consents after consultations.
(3) Use confidential information of a former client to the disadvantage of the former client after the representation is concluded unless the former client consents after consultation or the confidential information has become generally known.
(4) Use privileged information of a client for the advantage of the lawyer or of a third person, unless the client consents after consultation.
(c) A lawyer may reveal confidential information:
(1) When the lawyer has been expressly authorized to do so in order to carry out the representation.
(2) When the client consents after consultation.
(3) To the client, the client's representatives, or the members, associates, and employees of the lawyer's firm, except when otherwise instructed by the client.
(4) When the lawyer has reason to believe it is necessary to do so in order to comply with a court order, a Texas Disciplinary Rule of Professional Conduct, or other law.
(5) To the extent reasonably necessary to enforce a claim or establish a defense on behalf of the lawyer in a controversy between the lawyer and the client.
(6) To establish a defense to a criminal charge, civil claim or disciplinary complaint against the lawyer or the lawyer's associates based upon conduct involving the client or the representation of the client.
(7) When the lawyer has reason to believe it is necessary to do so in order to prevent the client from committing a criminal or fraudulent act.
(8) To the extent revelation reasonably appears necessary to rectify the consequences of a client's criminal or fraudulent act in the commission of which the lawyer's services had been used.
(d) A lawyer also may reveal unprivileged client information.
(1) When impliedly authorized to do so in order to carry out the representation.
(2) When the lawyer has reason to believe it is necessary to do so in order to:
(i) carry out the representation effectively;
(ii) defend the lawyer or the lawyer's employees or associates against a claim of wrongful conduct;
(iii) respond to allegations in any proceeding concerning the lawyer's representation of the client; or
(iv) prove the services rendered to a client, or the reasonable value thereof, or both, in an action against another person or organization responsible for the payment of the fee for services rendered to the client.
Therefore, a lawyer cannot reveal any confidential information in an online post unless one of the exceptions in parts (c) or (d) applies. Option 1 clearly is not a violation of Rule 1.05 because it does not reveal any confidential information. But what about the rest?
The Professional Ethics Committee for the State Bar of Texas considered this question in its 2016 Ethics Opinion 662:
“Absent an applicable exception found in Rule 1.05, a lawyer may not post a response to a negative review that reveals any information protected by the lawyer-client privilege, or otherwise relating to a client or furnished by the client, or acquired by the lawyer during the course of or by reason of the representation of the client. This is true even though the information may have become generally known.”
Rule 1.05(c)(5) and Rule 1.05(d)(2)(ii) both permit revealing confidential information when necessary to “establish a defense . . . in a controversy between the lawyer and the client” or to “defend the lawyer . . . against a claim of wrongful conduct.” But do online reviews fall within the realm of a “controversy between the lawyer and the client” or “claim of wrongful conduct” as contemplated by the rules?
The Professional Ethics Committee was not persuaded that this language constituted an exception to the general rule:
“It is the opinion of the Committee that each of the exceptions stated above applies only in connection with formal actions, proceedings or charges. The exceptions to Rule 1.05 cannot reasonably be interpreted to allow public disclosure of a former client’s confidences just because a former client has chosen to make negative comments about the lawyer on the internet. This approach is consistent with the guidance issued by the ethics authorities in other jurisdictions.”
This makes sense because these rules were written long before the internet existed, so the words “claim” or “controversy” suggest an official proceeding of some sort. Like many things pertaining to lawyers and the internet, the rules often don’t speak directly to the ethical boundaries of attorney communication online.
Therefore, Options 3 and 4 and clearly violate Rule 1.05 because they reveal client confidences that the attorney is clearly prohibited from revealing. No attorney should discuss in an online format any conversations that were held between lawyer and client or reveal legal strategies.
That leave Option 2 as the closest call. Can a lawyer refuse to discuss details online yet state publicly that she disagrees with the client’s account of the representation? Although the language of the Rule does not address this, Ethics Opinion 662 says she can, citing a Pennsylania Ethics Opinion for an example of an appropriate online response. Opinion 662 states that this comment would be allowed by the Texas Disciplinary Rules:
“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.”
Because Option 2 is very similar to this language, it is permissible under the Texas rules per Opinion 662. The correct answer is C.
A final note: the Committee specifically notes that nothing in the ethics rules or this opinion prevents an attorney from filing a lawsuit against clients who defame the lawyer online or commit other “actionable misconduct” through an internet publication.
Posted: 10/27/2019 12:00:00 AM by
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