Stephen D. Hamilton
Stephen D. Hamilton has been an attorney for 22 years, with a practice devoted almost exclusively to family law for 20 of those years. He has been a Certified Specialist in Family Law since 2004. He is a member of ACFLS and serves on the ACFLS Outreach Committee. He is also the chairperson of the San Luis Obispo County Family Law Section, and is currently a member of the California Family Law Executive Committee and Assistant Editor of the Family Law News.
As potential clients increasingly rely on internet reviews of you or your firm when deciding to retain you, managing and potentially responding to negative reviews is becoming a necessity. But the question is, how can you respond? Unlike your neighborhood pharmacy or local eatery, attorneys are not free to respond to reviews with specific facts or other information because of the attorney-client privilege and other ethical considerations. This article addresses both legal and practical issues when you feel a negative review demands a response.
The State Bar has not issued a formal opinion regarding directly addressing a former client's negative online review. However, the Standing Committee on Professional Responsibility and Conduct has issued Formal Opinion Number 2016-195, which provides some guidance and boundaries. It addresses the issue of whether an attorney is required to refrain from disclosing "potentially embarrassing or detrimental information about the client" learned while representing that client, even though that information is publicly available. For example, in responding to a negative online review by a former client, can you refer to a finding by a court that the former client was the subject of a domestic relations order because they beat their spouse? That information would be publicly available and would clearly undermine the reviewer's credibility. However, Formal Opinion 2016195 concludes that you cannot provide it in response to the negative review.
The opinion notes that "[o]ne of the most important duties of an attorney to is to preserve the secrets of his client," citing Wutchumma Water Co. V. Bailey, 216 Cal. 564, 572 (1932)1 and Rule 3-100 of the Rules of Professional Conduct. It states the duty of every attorney to "maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client."2 This duty to maintain a client's confidence is paramount. The only codified exception is when an attorney believes that breach of the confidence is necessary to prevent a criminal act reasonably believed to result in death or substantial bodily harm to another.
This duty of confidentiality is broader than the attorney-client privilege3 It prohibits the attorney from disclosing facts or allegations that might cause a client or former client public embarrassment.4 As Formal Opinion 2016-195 states in footnote 4, "... client information does not lose its confidential nature merely because it is publicly available." Thus, the opinion concludes:
A lawyer's duty of confidentiality is broader than the attorney-client privilege, and embarrassing or detrimental information learned by a lawyer during the course of his representation of a client must be protected as a client secret even if the information is publicly available. A lawyer's duty to preserve his client's secrets survives the termination of the representation. If, however, otherwise embarrassing or detrimental information was not learned by the lawyer by virtue of his representation of the client, it is not a client secret, and the lawyer is not bound to preserve it in confidence.
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This conclusion, while advisory only, is clear about...
