As more consumers post reviews of businesses online, more businesses are engaging reviewers and using the reviews as a form of business marketing. It is more common than ever to see business owners directly respond to reviewers, thanking reviewers for positive comments, and encouraging reviewers to contact them to address negative comments.
Whether in response to a particular review or as part of a comprehensive reputation management strategy, there are already a number of considerations to think through before deciding whether and how to respond bad reviews. For lawyers, and Colorado lawyers in particular, there are ethical questions to consider as well.
Last month, Colorado adopted Opinion 136, “A Lawyer’s Response to a Client’s Online Public Commentary Concerning the Lawyer.”
The ethical considerations in the opinion are not a factor for the lawyer who directly responds to the reviewing client privately. The opinion specifically addresses “the ethical considerations that apply when a lawyer responds online to a negative online review posted by the lawyer’s current, former, or prospective client.”
Overall, as explained in the opinion, “[n]o ethics rule or statute specifically precludes a lawyer from responding to online criticism.” But, other rules of professional conduct limit what a lawyer can say in an online response.
For example, Colorado’s Rule 1.6 generally prohibits a lawyer from revealing “information relating to the representation of a client” unless there is express consent or implied authorization, or unless one of several limited exceptions applies.
A former client who posts a review may end up revealing information about the attorney-client relationship in the process of describing the basis of their review. But their disclosure does not necessarily open the door for the attorney to confirm, deny, or otherwise comment on or add to the disclosed information.
A client’s negative review, on its own, is not part of a civil, administrative, or criminal proceeding that would allow the lawyer to reveal or discuss information related to the representation. It might, however, create a “controversy” between the lawyer and the client that permits the lawyer some room to disclose otherwise protected information under Rule 1.6 of the Colorado Rules of Professional Conduct. Colorado’s Opinion 136 makes it clear, however, that there is no “binding authority” that provides a hard and fast set of rules for Colorado lawyers to follow.
For those lawyers responding online to a negative client review, Opinion 136 provides some sample language from the Pennsylvania Bar Association that keeps a lawyer’s response short and vague:
A lawyer’s duty to keep client confidences has few exceptions and in an abundance of caution, I do not feel at liberty to respond in a point-by-point fashion in this forum. Suffice it to say that I do not believe that the post presents a fair and accurate picture of the events.
The suggested response, although legalistic, is also courteous. Courtesy is important for a number of reasons. It can aid in conflict resolution and bolster attorney credibility. As Opinion 136, Colorado’s Rules of Professional Conduct, and the Model Rules of Professional conduct also make clear, attorneys are expected to treat all clients with respect, even if those clients do not extend the same courtesy to their attorneys.
By Alexandra Tracy-Ramirez, HopkinsWay PLLC. | © HopkinsWay PLLC 2019. All rights reserved.