Risk Update

Rules & Opinions — Lawyer Review Response, Canadian Email Risk?

Posted Dan Bressler

“Lawyers must use caution when responding to negative online reviews, new ethics opinion says” —

  • “Lawyers are frequent targets of criticism and sometimes that criticism takes place in the form of negative reviews online. As such, lawyers must be careful not to violate the duty of confidentiality when responding to negative online reviews. The ABA’s Standing Committee on Ethics and Professional Responsibility advises that the best response is often no response at all.”
  • “Formal Opinion 496, released Wednesday, identifies ‘the main ethical concern’ of any response a lawyer makes to a negative online review as ensuring the “confidentiality of client information.'”
  • “The opinion notes that an online review is not a “proceeding,” and responding online is not necessary to establish a defense to a criminal or civil charge. Thus, the only part of the rule that even possibly would allow disclosure is establishing a claim or defense for the lawyer in a controversy between the lawyer and the client.”
  • “The opinion also identifies what it calls “best practices” for lawyers when confronted with negative online reviews. A lawyer can ask the website host or search engine to remove the post. The lawyer cannot relay confidential client information but can tell the website host that the post is not accurate.”
  • “The opinion cautions: ‘Even a general disclaimer that the events are not accurately portrayed may reveal that the lawyer was involved in the events mentioned, which could disclose confidential client information.'”
  • More detail via ABA press release.

Now usually I’m the one making snarky comments, but ethics lawyer Brian Faughnan gets top marks here for invoking SNL’s Stephan on this matter:

  • “This opinion has everything. Sound rule interpretation. Meaty footnotes chock-full of research material for disciplinary cases and state ethics opinions. Acknowledgement of the important role that Barbara Streisand plays on this topic. Good practical guidance for what a lawyer might do. Seriously, go read it.”
  • “The only quibble I have with it is its initial conclusion that online criticism alone from a client does not qualify as a ‘controversy’ under Model Rule 1.6(b)(5). I think that is wrong, but the opinion goes on to even make my quibble pointless because they acknowledge that even if they are wrong about that, the lawyer wouldn’t need to respond online in kind to ‘establish a claim or defense on behalf of the lawyer’ with respect to the controversy. I’d prefer that the opinion just rely upon that point rather than arguing that an online dust-up could not constitute a controversy.”
  • (I debated using the clip art on his post, but figured everyone would think I was making it up…)

Rule changes in Canada caught my eye as I wondered when we’d see the first examples of inbox overload risk: “Tips to Prepare for the New Rule Changes” —

  • “On January 1, 2021, significant changes to the Rules of Civil Procedure come into force. While you should review the amendments carefully, this article include some key practical tips and an overview of the major changes.”
  • “You can now serve documents by email. Confirm that your email address is up to date with the LSO as the courts and parties will look it up on the LSO members database. Rule 4.12(1)(b) allows the Court to send documents to the e-mail address for lawyers as published on the LSO’s website when there is no other e-mail address in the Court file.”
  • “Remember to add your email address to the backsheet of and update your Court forms. Familiarize yourself with the new document naming protocols for electronic filing and CaseLines.”
  • “The amended Rules allow for the service of documents (other than originating processes) by email. Relatedly, references to the service of documents by fax have been removed from Rules 16, 37, and 38. So lawyers – check your e-mail regularly!”
  • “E-mail service will not require the consent of the other parties or a court order (see amended Rule 16.01(4)(b)(iv) and Rule 16.05(1)(f)). There is also no longer a need for a certificate of service (former Rule 16.09(6) is revoked). Court staff will also be permitted to communicate and send certified court documents (4.03 (2)) to parties by email (4.12).”