Can Your Firm Reply Without Confirming a Client?
A one-star Google review shows up on a Monday morning. The reviewer says they hired your firm, paid too much and got a bad result. The partner wants to set the record straight, and you have the login.
Before anyone replies, read what the American Bar Association's Standing Committee on Ethics and Professional Responsibility said about this. ABA Formal Opinion 496, "Responding to Online Criticism", issued January 13, 2021, cuts against the urge to explain.
The reviewer's post doesn't give you permission
The usual argument: the reviewer already said they were our client, so we aren't revealing anything. Opinion 496 rejects that in footnote 2: "A client or former client's negative online comments do not create 'implied authorization' for the lawyer to disclose confidential information in response to the online criticism because that is not required to carry out the representation."
What's protected is broad. Model Rule 1.6(a), in the opinion's words, "prohibits lawyers from disclosing information relating to any client's representation or information that could reasonably lead to the discovery of confidential information by another." The rule also recognizes informed consent, implied authorization to carry out the representation and the exceptions in paragraph (b). The opinion applies the ABA Model Rules as amended through August 2020. Fees, dates, what was said and how the matter ended all relate to the representation.
A review alone isn't a controversy under Rule 1.6(b)(5)
Rule 1.6(b)(5) lets a lawyer reveal some information in a "controversy between the lawyer and the client." The committee closed that door: "A negative online review, alone, does not meet the requirements of permissible disclosure in self-defense under Model Rule 1.6(b)(5)." A review, "because of its informal nature, is not a 'controversy between the lawyer and the client'".
Even if a post did rise to that level, "a public response is not reasonably necessary or contemplated by Rule 1.6(b)". The committee therefore rejects a negative review alone as a basis for disclosing confidential information in a public reply on Google.
States differ. Opinion 496 cites State Bar of Texas Professional Ethics Committee Opinion 662 (2016), which allows "a proportional and restrained response that does not reveal any confidential information or otherwise violate the Texas Disciplinary Rules of Professional Conduct", and New Jersey Advisory Committee on Professional Ethics Opinion 738 (2020), which lets a lawyer say they disagree with a review's facts. The ABA's summary notes that New Jersey prohibits disclosure of information relating to the representation except information that is "generally known" under its rule. Opinion 496 describes Colorado Ethics Opinion 136 (2019) as allowing limited disclosure when criticism rises to a lawyer-client controversy, and the ABA committee says it "disagrees" to the extent Colorado permits that in a public response. ABA opinions are advisory, and footnote 1 says the rules and opinions of individual jurisdictions "are controlling." The applicable jurisdiction's rules and opinions control.
What getting it wrong has cost
Footnote 7 of the opinion reports a six-month suspension in People v. Isaac (Colo. O.P.D.J. 2016), involving replies to former clients' reviews that revealed criminal charges and other information; an 18-month suspension in People v. Underhill (Colo. 2015), involving confidential and sensitive information posted in response to multiple clients' criticism; and a public reprimand in In re Tsamis (Ill. 2014), involving disclosures on Avvo. These are the ABA's summaries, not a full account of each disciplinary proceeding. The opinion says lawyers are not required to respond directly to a client or former client who posts criticism.
Why "yes, they were our client" is the risky part
The opinion doesn't say outright that confirming someone was a client is always confidential. Put its pieces together, though. The reviewer's post does not itself create implied authorization to disclose confidential information. Protected information includes anything that "could reasonably lead to the discovery" of confidential information. And on posts by nonclients, such as a former opposing party or a former client's relative, that relate to an actual representation, the committee warns: "Even a general disclaimer that the events are not accurately portrayed may reveal that the lawyer was involved in the events mentioned, which could disclose confidential client information."
The cautious reading is that a reply shouldn't confirm the relationship unless a lawyer has checked your state's rules and decided it can. The opinion does let a lawyer say a poster is neither a client nor a former client when that's true, but it urges caution where a nonclient's post concerns a real matter, so that call belongs to a lawyer too. That gives you four kinds of detail to flag in any draft:
- anything that confirms the person was a client, including "we're sorry your case didn't go as hoped"
- fees, invoices, retainers or payment history
- what was said, by the client or by the firm
- how the matter ended, whether by settlement, dismissal, verdict or withdrawal
A hypothetical draft, "We fought hard on your custody case and the judge's ruling was out of our hands", confirms the relationship and identifies the subject of the representation. Referring to a judge's ruling does not necessarily say how the matter ended.
What the opinion says you can do
Its headline advice is to consider silence: "As a best practice, lawyers should consider not responding to a negative post or review, because doing so may draw more attention to it and invite further response from an already unhappy critic."
A firm can also ask the website or search engine host to remove the post. The opinion says that, unless the client consents to disclosure, that request can't disclose information relating to the representation or information that could reasonably lead to discovery of confidential information, "but may state that the post is not accurate or that the lawyer has not represented the poster if that is the case."
For firms that want something visible under the review, the opinion gives two sample posts. One invites the person offline. Its example, written for a former client's post, is "Please contact me by telephone so that we can discuss your concerns," with a warning that this "is not effective unless the lawyer has the intent and ability to try to satisfy the person's concerns." The other is a single line: "Professional obligations do not allow me to respond as I would wish."
If the critic is a client or former client, the lawyer may also respond to that person directly, in private. The opinion is explicit that this conversation doesn't happen in the review thread: "The lawyer may not respond online, however."
A reply routine for the front office
This isn't legal advice, just an office habit that keeps the right lawyer in the loop.
- Pause. Nobody replies the day the review appears.
- Look up the reviewer in Clio to find the responsible lawyer. A match, or no match, stays internal and out of any draft.
- If a reply seems worth posting, draft it and mark every phrase that touches the four categories above.
- Send the review and the draft to the responsible lawyer, who approves, rewrites or kills it under your state's rules and ethics opinions.
- Note the decision and the date, including a decision not to reply.
Step 4 may end with no reply or the opinion's one-line sample, and that's fine. Repsight supports email and SMS review requests and integrates with Clio.