PBCBA BAR BULLETINS PBCBA Bulletin - March 2020 | Page 18

PROFESSIONALISM CORNER D. CULVER "SKP" SMITH III “Sticks and Stones May Break My Bones, but Words Will . . . He Said What?!” Responding to Negative Online Reviews Let’s face it: Words can hurt—especially if posted on websites for all the world (including prospective clients) to read. As online review websites like Yelp and Avvo gain in popularity, lawyers are increasingly confronted with negative online reviews, typically posted by disgruntled former clients. Welcome to the world of hotels and restaurants. is permissible as long as it does not reveal confidential information or harm the former client and is “proportionate and restrained.” In June 2018 the Florida Bar Professional Ethics Committee approved a staff opinion that gave the following example of a proportionate and restrained response: A lawyer’s duty to keep client So, what should you do when hit with an confidences has few exceptions and inaccurate or unfair negative online review in an abundance of caution I do not by a former client? First, decide whether feel at liberty to respond in a point by to respond at all. An isolated negative point fashion in this forum. Suffice it review, especially among positive reviews, to say that I do not believe that the post may not be terribly detrimental, whereas presents a fair and accurate picture of responding directly to the review may only the events. draw attention to it. A response also may launch a stream of negative posts by the This seems a little more restrained than former client—especially if, as often is the necessary. A permissible alternative case, the former client is driven by some might be: preexisting psychological wound. “At [Law Firm] we always strive to If you feel compelled to respond, remember provide each client with the highest your ethical obligation not to reveal qualify representation. We believe we “information relating to representation of a did so in [Client]’s case. Our ethical client.” See R. Regulating Fla. Bar 4-1.6(a). obligation to [Client] to maintain Note that this prohibition is far broader [his/her] confidences precludes us than the evidentiary attorney-client from commenting further. We would privilege: it extends to all information welcome [Client]’s contacting us relating to the representation, not just directly to address [his/her] concerns.” confidential communications. Thus, you should not say that the client made the Don’t include that last sentence, however, representation difficult, failed to pay your unless you mean it. bill, or even that you withdrew from the representation (which implies bad conduct Some closing thoughts: by the client or might be interpreted as your having abandoned the client). 1.) Don’t say, “We are sorry [Client] feels Lawyers have been disciplined in other that way.” This last statement smacks of jurisdictions for disclosing confidential insincerity and of a subtle attack on the information in responses to online reviews client’s mental or emotional stability. It and no doubt would be in Florida as well. does not help. Cf. Fla. Bar v. Knowles, 99 So. 3d 918 (Fla. 2.) It is permissible to ask satisfied 2012) (lawyer suspended for one year for clients and former clients if they disparaging comments about client in would be willing to post reviews, the motions to withdraw). The so called “self- goal being to bury the bad among a defense” exception to confidentiality, which plethora of good. Do not, however, permits disclosure of such information in draft or suggest content or provide a proceedings in which the lawyer’s conduct quid pro quo. is at issue, does not apply here. 3.) The confidentiality obligation applies as well to efforts to persuade Several state-bar ethics advisory the site host to take down the post. committees have weighed in on the issue. 4.) Some lawyers have considered The consensus seems to be that a response inserting nondisparagement clauses PBCBA BAR BULLETIN 18 in their engagement agreements. This seems counterproductive: what message does it send to the new or prospective client? In addition, such a clause may run afoul of the federal Consumer Review Fairness Act of 2016, 15 U.S.C. § 45b, which prohibits such clauses in “form contracts.” (The Act defines form contract as “a contract with standardized terms (i) used by a person in the course of selling or leasing the person’s goods or services; and (ii) imposed on an individual without a meaningful opportunity for such individual to negotiate the standardized terms.” Id. § 45b(a)(3)(A).) We now live in a world of broad and unrestrained public commentary on just about everyone and everything. Rating services urge consumers of goods and services to rate providers with whom they come into contact. Reviews can arm consumers with valuable information, but much like gossip, they can be cruel and inaccurate. This, however, does not alter our professional obligations. Setting realistic client expectations at the outset and providing care, concern, and communication throughout the representation will go far to avoid the dilemma that this article addresses. Even the most demanding and cynical of clients respects professionalism. D. Culver “Skip” Smith III focuses his practice on the ethical and professional responsibilities of lawyers. He maintains an office in West Palm Beach and can be reached at 561-598-6800 or at .