More than a decade after clients started leaving attorney reviews online, the ABA has now steps in to offer ethical guidance on Responding to Online Criticism, Formal Opinion 496. As with a majority of jurisdictions, the ABA takes the position that a negative client review does not trigger the type of controversy with a client – such as a malpractice lawsuit – that would justify disclosure of confidential client information as a defense. Therefore, lawyers who disclose client confidences to respond to online criticism may be subject of disciplinary proceedings.
The Opinion 496 referenced two jurisdictions that take a somewhat different approach. Colorado Formal Opinion 136 (2019) determined that if an online review rises to the level of a controversy, attorneys may disclose confidences though they should err on the side of non-disclosure if uncertain. And D.C. Bar Formal Opinion 370 (findable here) allows lawyers to, with caution, reveal client confidences defend themselves in response to online comments.
The ABA Opinion provided a list of “best practices” for responding to online criticism. These include requesting removal of a poor review, not responding at all to avoid triggering more negative feedback or inviting the commenter to contact the attorney to take the conversation offline. The ABA also suggests that lawyers invoke their professional obligation to keep confidences as an explanation for limited comment.
Many lawyers have objected to the ABA’s Opinion as an unfair encroachment on speech that could harm lawyers – particularly solos – by leaving them defenseless from an unjustified attack. And while I’m generally critical of many ethics decisions, I don’t find the ABA Opinion all that onerous. Although the ABA’s recommendation “not to engage” is unwise (and contrary to every piece of business advice on responding to reviews), the ABA Opinion would not prevent lawyers from using most of Hubspot’s suggested templates to answer online criticism.
Moreover, even if lawyers can ethically respond to a negative review by unpacking a client’s dirty laundry in public, that’s not necessarily the best approach from a business perspective. Consider a situation where an attorney, accused of being rude and overcharging a client in a review, responds by blaming the client for running up the bill due to her dysfunctional relationship with her ex. I’d view the attorney as a bully, and the lack of discretion in poor taste and would be unlikely to send referrals along. And I think many prospective clients would feel the same way.
Undoubtedly, negative online reviews can seriously impact a law firm. One online source reports that a single negative review can drive away 22 percent of potential customers. Yet, a negative review can also provide an opportunity to capture a client since 57 percent of customers pay attention to an online business’ response to negative reviews. Lawyers who respond apologetically to online criticism and try to make it right can overcome the adverse effect of online reviews. And those kinds of responses are still permissible under the ABA Opinion.