The State Bar Association of North Dakota Summer 2013 Gavel Magazine | Page 28

LAWYER ETHICS & TECHNOLOGY straints on a lawyer’s response to derogatory online postings. This article is offered to fill that gap. Rule of Professional Conduct 1.6 states the general prohibition against disclosing “information relating to the representation of the client unless the client consents, the disclosure is impliedly authorized in order to carry out the representation, o r the disclosure is required by paragraph (b) or permitted by paragraph (c).”iii Rule 1.6(a) also reminds us that “[t]he duty of confidentiality continues after the lawyer-client relationship has terminated.” iv Responding to an online attack likely would invoke consideration whether a lawyer can use confidential information as permitted under Rule 1.6(c). That subsection provides: A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: (4) 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.v A creative lawyer might argue that responding to a former client’s online attack falls within the language permitting use of confidential information to mount a “defense on behalf of the lawyer in a controversy between the lawyer and the client.”vi However, further study should discourage such creativity. A comment to Rule 1.6 provides, “Where a legal claim or disciplinary charge alleges complicity of the lawyer in a client’s conduct or other misconduct of the lawyer involving representation of the client, the lawyer may respond to the extent the lawyer reasonably believes necessary to establish a defense.” vii The comment continues by explaining the scope of permitted response includes charges arising in “a civil, criminal, disciplinary or other proceeding and can be based on a wrong allegedly committed by the lawyer against the client or on a wrong alleged by a third person.”viii A recent ethics opinion from California addressed this topic while applying similar but not the same legal standards.ix There, a former client posted on a website, discussing that his former counsel was incompetent and over-charged him and that others should avoid retaining the lawyer.x The lawyer sought advice on the nature of his response, and the Ethics Committee responded saying, “The bar on Attorney revealing confidential information in responding to Former Client’s internet posting does not mean Attorney cannot respond at all. If Attorney does not disclose confidential or attorney-client privileged information, and does not act in a way that will injure Former Client in a matter involving the prior representation, he/she may respond.” xi The Committee explained that lawyers have ethical limitations beyond simply not responding with non-confidential information. Those limitations prevent the attorney from responding “in a manner that will injure Former Client in a matter involving the former representation” and the attorney’s response must be “proportionate and restrained.”xii In terms of actual discipline, the Georgia Supreme Court rejected a recommended sanction of reprimand for a lawyer who revealed confidential information when responding to a negative online review posted by a former client.xiii The Court remanded the matter for further findings about the nature and extent of confidential information revealed by the lawyer.xiv The Georgia Court said its action was in line with harsher discipline imposed in other states when lawyers used confidential information when responding to online postings by former clients.xv continued on page 28 Justice Daniel Crothers North Dakota Supreme Court Responding to Adverse Electronic Postings All Rights Reserved Complaints by former clients or opposing parties are not new to the legal profession, which may not be shocking given the adversarial nature of most legal work. However, a relatively new and growing threat to the legal profession is how the internet expands a disgruntled person’s ability to disseminate those complaints. The State Bar Association of North Dakota broached this subject several years ago by publishing the “Protect Your Practice Toolkit: How to easily establish online content to counteract & protect yourself from online attacks.” i The Toolkit explains: When someone takes offense or is opposed to a court ruling, laws or specific lawyers, emotions run high and the propensity to distribute malicious information is present. In today’s era of mass communication and online messaging, distributing malicious messages is easy through websites and blogs. The malicious (and often incorrect) information about your character, style, ruling, etc. can be very harmful to your image, your practice or various organizations you are associated with. To counteract these types of online attacks and avoid damaging online content, we’ve developed this toolkit to educate you on how to establish your own positive online content.ii SBAND created the Toolkit to give lawyers ideas for electronically promoting and protecting their law practices. The Toolkit understandably did not discuss ethical con- 26 The Gavel Summer 2013