The Mississippi Bar
CAVEAT: This opinion is limited strictly to the facts set forth in the hypothetical submitted and is limited to the question of whether the proposed conduct is permissible under the Mississippi Rules of Professional Conduct. The Ethics Committee is prohibited from rendering opinions on questions of law by Article 8-15(c) of the Bylaws of the Mississippi Bar. Any incidental reference to legal authorities is informational and should not be taken as the Committee’s interpretation of such authorities or of the legal issues arising from the hypothetical presented or the legal ramifications of the proposed conduct. The Committee’s Opinion is limited to ethical issues only.
FACTS:
The Ethics Committee of the Mississippi Bar was presented with the following fact scenario:
A lawyer represented a former client in a civil dispute. After the representation concludes, the former client posts a negative, “1 star” review about the lawyer on a public, online platform. The review warns others to “STAY AWAY” and asserts that the lawyer is dishonest, incompetent, never returns phone calls, and overbills for services.
The lawyer is considering a public response to the negative review using the same online platform to blunt the review’s impact on current and prospective clients and otherwise defend against the former client’s unfounded accusations. The lawyer’s proposed response would contain two categories of content: 1) information relating to the representation of the client which appears in publicly available court filings; and 2) information relating to the representation of the client, some of which the former client voluntarily revealed in the online review.
The Ethics Committee has been asked to respond to the following questions based upon the above fact scenario:
a) May a lawyer post information relating to the representation of a client on a public online platform if the information in the lawyer’s proposed post (1) appears in publicly available court filings and/or (2) was voluntarily revealed by the client in a negative online review?
b) Do the exceptions under Rule 1.6(b)(5) for responding to an accusation or wrongful conduct apply to negative online reviews such that the lawyer may ethically reveal information relating to the representation of the former client?
ANALYSIS:
Rule 1.6 of the Mississippi Rules of Professional Conduct (“MRPC”) provides as follows:
a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by paragraph (b).
(b) A lawyer may reveal such information to the extent the lawyer reasonably
believes necessary:
(1) to prevent reasonably certain death or substantial bodily harm;
(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interest or property of another and in furtherance of which the client has used or is using the lawyer’s services;
(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services;
(4) to secure legal advice about the lawyer’s compliance with these rules;
(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client.
(6) to comply with other law or a court order.
Rule 1.9, MRPC, provides as follows:
A lawyer who has formerly represented a client in a matter shall not thereafter: (a) represent another in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client consents after consultation; or (b) use information relating to the representation to the disadvantage of the former client except as Rule 1.6 would permit with respect to a client or when the information has become generally known.
The Ethics Committee is of the opinion that a lawyer’s response to a negative online review that contains publicly available information from a court file and/or information voluntarily revealed by the client is nonetheless information relating to the representation. Rule 1.6(a) applies to all information related to legal representation, including that which appears in a public court file or is voluntarily revealed by a client in an online review. Consequently, the lawyer may not disclose such information unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by a confidentiality exception. The only exception that arguably could apply is found in Rule 1.6(b)(5).
However, the Ethics Committee is also of the opinion that Rule 1.6(b)(5) does not apply to negative online reviews such that the lawyer may ethically reveal information relating to the representation of the former client. A negative online review is not a “controversy between the lawyer and the client” nor a “proceeding concerning the lawyer’s representation of the client” and thus does not fall within the meaning of Rule 1.6(b)(5).
The committee further concludes that even if an online review rose to the level of controversy between lawyer and client, a public response is not reasonably necessary or contemplated by Rule 1.6 in order for the lawyer to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client.
The obligation of confidentiality outlined in Rule 1.6 continues to extend to former clients by virtue of Rule 1.9(b).
A lawyer should give serious consideration to not responding to negative online reviews in all situations. Any response may prompt further responses from the original poster and otherwise enhance the original post’s appearance in search results online. The Ethics Committee is of the opinion that if a member finds a response to online criticism necessary, the response should be measured, restrained, and not reveal information related to the representation.
CONCLUSION:
The exceptions in Rule 1.6(b), MRPC, to a lawyer’s duty of confidentiality do not allow a lawyer to respond to online criticism using information related to a client’s representation, even if that information is available in public filings or was revealed by the client in the original post.