Proposed North Carolina Bar ethics opinion states that lawyers may only make “restrained” responses to negative online reviews

Hello everyone and welcome to this Ethics Alert which will discuss recent proposed North Carolina Bar 2020 Formal Ethics Opinion 1, which states that lawyers are prohibited from revealing confidential information in response to a negative online post; however, the lawyer can make a “proportional and restrained” response.  Proposed NC Bar 2020 Formal Ethics Opinion 1 is here:   https://www.ncbar.gov/for-lawyers/ethics/proposed-opinions/

At its meeting in January 2020, the North Carolina State Bar Council adopted an ethics opinion stating that lawyers may post “a proportional and restrained” response to negative online reviews by former clients, but are prohibited from disclosing confidential information.  North Carolina lawyers have until March 30, 2020 to comment on the proposed ethics opinion.

The proposed ethics opinion responds to an inquiry by a North Carolina lawyer who believed that some online comments by a former client were false. The lawyer believed he could rebut the allegations using confidential information.  The proposed ethics opinions states that lawyers are prohibited from revealing confidential information without client consent, or unless an exception applies.

The ethics opinion discusses the exception to the confidentiality rule that permit a lawyer to reveal confidential information to the extent the lawyer reasonably thinks is necessary to defend a criminal charge or civil claim based on the client’s conduct, to establish a claim or defense in a controversy between the lawyer and client, or to respond to allegations in any proceeding involving the lawyer’s representation of the client.

The opinion discusses what it calls the “self-defense” exception, which permits a lawyer to reveal confidential information to defend him or herself applies to legal claims and disciplinary charges arising in a civil, criminal, disciplinary or other proceeding and states that “(a) negative online review does not fall within these categories and, therefore, does not trigger the self-defense exception.”

Florida, Pennsylvania, Texas, and New York Ethics Opinions have made similar conclusions.  My August 2018 blog on the Florida Bar Board of Governor’s approval of Florida Bar Staff Opinion 38049, which states that a lawyer may post only a limited response to a negative online review that the lawyer said falsely accused her of theft and may not reveal attorney/client confidences is here:  https://jcorsmeier.wordpress.com/2018/08/01/florida-bar-professional-ethics-committee-approves-staff-opinion-addressing-lawyer-responses-to-negative-online-reviews/.

Bottom line:  This proposed ethics opinion is consistent with other ethics opinions which have examined this issue, including Florida. Unless the exceptions to the rule are revised in the lawyer’s jurisdiction, lawyers will continue to be prohibited from providing confidential information in rebutting allegations in online reviews by clients or former clients.

Be careful out there.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2999 Alt. 19, Suite A

Palm Harbor, Florida 34683

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

Joseph Corsmeierabout.me/corsmeierethicsblogs

About jcorsmeier

Joseph A. Corsmeier is an “AV” rated attorney practicing in Clearwater, Florida. He concentrates his practice primarily in the areas of defense of attorney disciplinary matters before The Florida Bar, attorney admission matters before the Florida Board of Bar Examiners, and professional license and disciplinary matters before the Boards of the State of Florida. He provides expert analysis and opinion on conflict of interest and other attorney disqualification and legal malpractice issues and he testified as an expert in the Florida courts. He served as an Assistant State Attorney in the Sixth Judicial Circuit from 1986 to 1990 where he prosecuted felonies exclusively from June 1987, and as Bar Counsel for The Florida Bar’s Department of Lawyer Regulation from 1990 to 1998. He also practices in the areas of estate planning and Medicaid qualification, workers’ compensation, and labor law. Mr. Corsmeier is the author of numerous articles for various bar publications, has spoken at numerous local and statewide seminars on various topics, including ethics and professionalism, and was an instructor of legal ethics for paralegals at Rollins College until the Tampa campus closed. He received his undergraduate degree from Florida State University and his J.D. from Mercer University. He is admitted to practice in all Florida Courts, the Supreme Court of the United States, the United States Court of Appeals for the Eleventh Circuit, and the Middle District of Florida. He is a member of The Florida Bar, American Bar Association, the Association of Professional Responsibility Lawyers, and the Clearwater and St. Petersburg Bar Associations.
This entry was posted in Attorney ethics, attorney-client privilege, Attorney/client confidentiality, Attorney/client privilege, Confidential Information, Confidentiality, corsmeier, Ethics Opinions, Florida Bar ethics opinion lawyer response to negative online review complaint and confidentiality, joe corsmeier, joseph corsmeier, Lawyer Ethics, Lawyer ethics opinions, Lawyer revealing confidential information on internet in response to complaint, Lawyer violation of confidentiality on internet, Lawyer/client confidentiality, Uncategorized and tagged , , , , , , , . Bookmark the permalink.

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