For the Defense - Vol. 4, Issue 2 - 20

Haters Gonna Hate:
Ethically Responding to
Negative Online Reviews

T

echnology permeates our lives, and is both
a boon and a bane. It frees us to work
anywhere, anytime - leading us to work
everywhere, all the time. It makes us more accessible
to the world and the world more accessible to
us, but intrudes on our daily human interactions
with each other and with the quiet of our own
thoughts. Digital media has provided even the single
practitioner with the ability to strategically establish
a web presence, but that strategy can be damaged
by negative and inaccurate online reviews.
Online reviews are now an established
"crowdsourcing" tool to guide consumers to our
services. We hope that these reviews will be truthful
assessments of our representation of sometimes
difficult people in often challenging circumstances.
However, the character traits that lead our clients
to need our help can also cause them to lash out at
us online. Criminal defense lawyers are more likely
to represent clients who might impulsively express
anger, attempt to shift blame to others, or depict
the facts unfairly. Since digital is forever, the effects
of an online attack can be felt for years. When a
client posts a negative online review, how can you
ethically respond? Be proportional, be restrained,
and most important-do not divulge client
confidences.

20

For The Defense

l

Vol. 4, Issue 2

Ellen Brotman

Our duty of confidentiality, as laid out in Rule 1.6
of the Rules of Professional Conduct must be your
guide. The duty of confidentiality is far broader
than the attorney-client privilege. The fact that the
client, in publicly speaking about the representation,
has "opened the door" does not permit you to
walk through it. Rule 1.6(a) prohibits a lawyer from
revealing "information relating to representation
of a client unless the client gives informed consent."
The phrase "information relating to representation
of a client" is not limited to secrets but, in fact,
includes information that is publicly, even widely,
known. In a recent American Bar Association
Opinion, the ABA opined that blogging about
a publicly discussed matter without the client's
consent was prohibited. See ABA Opinion 18-480
("Lawyers who blog or engage in other public
commentary may not reveal information relating to
a representation, including information contained in
a public record, unless authorized by a provision of
the Model Rules."). It should be noted that Opinion
19-480 sparked a debate over whether disciplining
a blogging lawyer would violate the lawyer's First
Amendment rights to speak publicly about public
matters; this debate is ongoing.
ABA Opinion 10-456 also provides guidance on
the scope of confidentiality. This opinion advises



For the Defense - Vol. 4, Issue 2

Table of Contents for the Digital Edition of For the Defense - Vol. 4, Issue 2

Contents
For the Defense - Vol. 4, Issue 2 - 1
For the Defense - Vol. 4, Issue 2 - 2
For the Defense - Vol. 4, Issue 2 - Contents
For the Defense - Vol. 4, Issue 2 - 4
For the Defense - Vol. 4, Issue 2 - 5
For the Defense - Vol. 4, Issue 2 - 6
For the Defense - Vol. 4, Issue 2 - 7
For the Defense - Vol. 4, Issue 2 - 8
For the Defense - Vol. 4, Issue 2 - 9
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For the Defense - Vol. 4, Issue 2 - 11
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For the Defense - Vol. 4, Issue 2 - 16
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For the Defense - Vol. 4, Issue 2 - 19
For the Defense - Vol. 4, Issue 2 - 20
For the Defense - Vol. 4, Issue 2 - 21
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For the Defense - Vol. 4, Issue 2 - 45
For the Defense - Vol. 4, Issue 2 - 46
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