The nation’s largest lawyers organization has recently issued ethics counseling that advises lawyers not to respond to online criticism. The advice conflicts with a Colorado Bar Association view that supplies some guideposts for doing so.
In a Jan. 13 opinion, the American Bar Association’s Standing Committee on Ethics and Professional Responsibility said rebuttal of online comments that denigrate a lawyer’s skill, effort or integrity is hazardous because it could cause the lawyer to run afoul of an ethical rule that requires protection of confidential information.
That ABA perspective takes a different tack than did the Colorado Bar Association in a 2019 ethics opinion that gives lawyers slightly more latitude to address online criticism. “The ABA doesn’t think an online review is a controversy which triggers a lawyer’s ability to defend herself,” said Alec Rothrock, a shareholder at Burns Figa & Will who specializes in ethics matters. “The Colorado opinion does.”
“Under the ABA opinion, the best response is, if you’re going to respond at all, ‘I can’t respond,’ said Ben Strawn, a partner at Davis Graham & Stubbs who also serves as the firm’s ethics counsel. “‘I have professional obligations that prevent me from responding.’”
Both the ABA’s teaching and the Colorado Bar Association’s March 2019 Formal Opinion 136 implicate a model rule of professional conduct that defines information considered confidential and lays out circumstances that permit its disclosure. The rule commands a lawyer not to “reveal information relating to the representation of a client unless the client gives informed consent.”
“Confidential information is much more than just what is ‘secret,’” Strawn said. “That can be things that are extraordinarily basic and even public, like the fact that you represent a client in a litigation. That’s really a very, very narrow window to try to get anything through.”
Breaching the duty of confidentiality involves a risk of disciplinary action, Rothrock. “In that context, the former client who posts a negative review and then gets slammed by the lawyer with information that wasn’t necessary to respond to the review, that former client may complain to the Office of Attorney Regulation Counsel,” he said. “That process starts and then the lawyer has to explain what she was thinking, why she posted the information she did, why she believed it was necessary to address the review made by the client.”
The ABA’s January counsel indicates the organization’s view that the exception in Model Rule of Professional Conduct 1.6 that allows a lawyer to disclose confidential information in “a controversy between the lawyer and the client” does not apply. Colorado’s Formal Opinion 136, by contrast, does. Rothrock said that lawyers should take care not to read too much into that difference or assume that the defense is easy to establish, even if the lawyer is protecting her business or professional reputation.
He said that, in Colorado’s leading lawyer discipline case that involves disclosure of client information online, the lawyer mentioned details the client had not mentioned and crossed the line created by the state’s analogue to Model Rule of Professional Conduct 1.6. In that 2016 case, known as People v. Isaac, Rothrock said, “the lawyer mentioned things like, ‘Oh, well this guy had a criminal charge of x,’ which was very embarrassing against him, and ‘he bounced a check on me.’ None of that information was necessary. Those sort of ancillary facts were not necessary to refute what the client said. The client said nothing about payment of bills.”
Rothrock said the court “thought the lawyer was trying to shame the client and discredit the client so that people reading the review would not hold it against the lawyer or would take it with a big grain of salt as some sort of ‘wacko’ former client,” which is not an appropriate reason to disclose information, even the most mundane public details, gained during the course of representation.
“It would be easy to say ‘don’t respond and you’ll never get into disciplinary hot water’ and a lot of people think that’s the best way to go about it,” Rothrock said. “But that’s not what you are limited to doing. It’s not [required] that you refrain from responding. But if you do, you can’t bring up facts that the client hasn’t brought up. You can’t respond with more information that the client brought up.”
The ABA Model Rules of Professional Conduct are used, essentially, as templates by state bar associations in the development of their own unique rules of professional conduct. Regardless of whether Colorado’s ethics rules precisely follow the ABA Model Rules of Professional Conduct, the OARC decides for itself how to interpret them. “Ethics opinions are not binding on either the lawyer or our office, though we often find them persuasive and informative,” said Jessica Yates, Colorado Supreme Court attorney regulation counsel.