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 .