Hello everyone and welcome to this Ethics Alert, which will discuss the recent vote by the Florida Bar’s Professional Ethics Committee (PEC) to publish a proposed ethics advisory opinion providing guidance to lawyers in responding to negative online reviews and complaint for comment. Proposed Ethics Advisory Opinion 20-1 is here: https://www.floridabar.org/the-florida-bar-news/committee-adopts-ethics-opinion-regarding-online-reviews/
The PEC voted at its February 7, 2020 meeting to publish formal Ethics Advisory Opinion 20-1, which provides guidance to lawyers in responding to negative online reviews for comment by Florida Bar members.
The Florida Bar ethics staff previously issued Florida Bar Staff Opinion 38049 in 2018 in response to a lawyer’s inquiry. The BOG approved the staff opinion on June 15, 2018; however, since the opinion was a reply to a single lawyer, it was not published. I discussed Florida Bar Staff Opinion 38049 provided a link to that opinion here: https://jcorsmeier.wordpress.com/2018/08/01/florida-bar-professional-ethics-committee-approves-staff-opinion-addressing-lawyer-responses-to-negative-online-reviews/
That staff opinion was minimally revised by the PEC and will be published online and in print in The Florida News for Bar member comments. The proposed formal advisory opinion concludes:
“Therefore, if the inquirer chooses to respond to the negative online review and the inquirer does not obtain the former client’s informed consent to reveal confidential information, the inquirer must not reveal confidential information regarding the representation, but must only respond in a general way, such as that the inquirer disagrees with the client’s statements. The inquirer should not disclose that the court entered an order allowing the inquirer to withdraw because that is information relating to the client’s representation and the client did not give informed consent for the inquirer to disclose.”
The proposed advisory opinion states that Florida Bar Rule 4-1.6(c) provides 6 exceptions permitting or mandating that a lawyer reveal confidential client information; however, none of the exceptions addresses online reviews. The proposed opinion also refers to the comment to Florida Bar Rule 4-1.6, which states:
“A fundamental principle in the client-lawyer relationship is that, in the absence of the client’s informed consent, the lawyer must not reveal information relating to the representation….(t)he confidentiality rule applies not merely to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source.”
The proposed opinion states that the language in Texas Ethics Opinion 622 “would be an acceptable response” to negative online reviews:
“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 (lawyer) also may state that the (lawyer) disagrees with the facts stated in the review.”
According to the Bar’s Notice, the PEC will consider any comments received at their meeting on Friday, June 19, 2020 in Orlando.
“Comments must contain the proposed advisory opinion number and clearly state the issues for the committee to consider. A written argument may be included explaining why the Florida Bar member believes the committee’s opinion is either correct or incorrect and may contain citations to relevant authorities. Comments should be submitted to Elizabeth Clark Tarbert, Ethics Counsel, The Florida Bar, 651 E. Jefferson Street, Tallahassee 32399-2300, and must be postmarked no later than March 31, 2020.”
Bottom line: Lawyers must be aware that negative online reviews do not fall within any of the exceptions which permit or require revealing confidential client information and, absent client informed consent, lawyers are not permitted to reveal confidential information in responding to the negative review. In our digital and social media age, perhaps a change in the Bar Rule permitting such responses would be appropriate.
I will keep you advised and 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
Office (727) 799-1688
Fax (727) 799-1670