Since the date of this writing, the Florida Bar has published Ethics Advisory Opinion 20-1 which addresses the disclosure of confidential information in response to an online review.

We thank Gary Blankenship, Senior Editor at The Florida Bar News, for this guest post.

A former client has taken to social media or some other online venue and posted a scathing critique of your services, including claims or information you know is unfair and perhaps even false.

How may you respond online?

Carefully, according to the Bar’s Professional Ethics Committee. The panel is seeking Bar members’ comments on adopting as a formal committee opinion a previously unpublished staff ethics opinion to help guide lawyers on this tricky issue.

“It’s really important we have a published opinion on this. I’m getting more and more inquiries,” said committee member Tim Chinaris, who advises attorneys on ethics and advertising matters. “Whatever we publish as a proposed advisory opinion, there’s going to be a lot of comment from Bar members.”

In 2018, the Bar staff issued an opinion in response to an inquiry, but since it was a reply to a single attorney, it was not published. Now the committee wants to make it a committee formal advisory opinion.

As part of that process, the opinion, which the PEC slightly modified, will be published in the News, both online and in print, for Bar members’ comments. The committee will consider those comments at its June meeting where it can then vote to make it a formal advisory opinion. That means it will be posted on the Bar’s website and otherwise be widely available as a resource for Bar members. The opinion provides that,

“[I]f 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 opinion also noted the comment to Bar Rule 4-1.6(c), which gives the six instances when a lawyer may reveal confidential client information, says, “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…. The 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 opinion endorses a recommendation from a State Bar of Texas ethics opinion that advised giving this response to online criticism: “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.”

Ethics Counsel Elizabeth Tarbert, in response to a question, said that prohibited confidential information could include citing a public court record that contradicts the former client’s claim. She also said, though, that lawyers have brought successful defamation actions against online critics.

In addition, she said Bar ethics staff regularly advises lawyers that merely responding could escalate the attention paid to online criticism.

“I’ve been advising lawyers on this more and more frequently,” said committee member D. Culver “Skip” Smith, who also consults with attorneys on ethics issues. “There’s another aspect. You can’t do harm to the client. When you respond and say you withdrew [from the representation] that could imply harm. Don’t say ‘I’m sorry you feel that way,’ it sounds like you’re impugning their mental ability.”

Committee member Lanse Scriven predicted the committee will get several responses to the proposed opinion, and noted that Rule 4-1.6 was written before the internet, social media, and online age.

“When these rules were written, the internet was not even contemplated,” he said. “I think the rules have fallen behind our current reality.”

The committee, at its February 7 meeting at the Bar’s Winter Meeting, voted overwhelmingly to publish the opinion for comment.

VIEWS AND CONCLUSIONS EXPRESSED IN ARTICLES HEREIN ARE THOSE OF THE AUTHORS AND NOT NECESSARILY THOSE OF FLORIDA BAR STAFF, OFFICIALS, OR BOARD OF GOVERNORS OF THE FLORIDA BAR.