Attorneys Are Restrained from Responding to Criticism
Submitted by New Jersey Criminal Lawyer, Jeffrey Hark
Advisory Committee on Professional Ethics 738
December 14, 2020
The Advisory Committee on Professional Ethics (ACPE) has issued an opinion regarding negative online reviews relating to a lawyer’s profile or website. Essentially, the ACPE has decided that a lawyer may only respond online to former or prospective clients by stating that they disagree with the facts presented by the reviewer, but they may not disclose “information relating to representation” except information that is “generally known.”
The question before the ACPE was whether lawyers could respond to former prospective or former clients posting false, misleading, and/or inaccurate statements about the attorney on online reviews consistent with Rules of Professional Conduct (RPC) 1.6 and 1.18.
Rule of Professional Conduct 1.6(a) provides that “[a] lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for . . . disclosures of information that is generally known . . . .” Rule of Professional Conduct 1.18(a) provides that “[a] lawyer who has had discussions in consultation with a prospective client shall not use or reveal information acquired in the consultation, even when no client-lawyer relationship ensues . . . .”
The ACPE found lawyers are permitted to respond to clients, former client, and prospective clients but cannot reveal “information relating to the representation,” except information that is “generally known,” unless the client reveals the information themselves. Whether information is “generally known” depends on the circumstances. Information generally accessible to the public is generally known, but information that is protected, not generally available to the public, or would take substantially difficulty or special knowledge to obtain would not be generally known.
Confidential information can only be revealed if is necessary for the lawyer to establish a claim or defense against a criminal charge, civil claim or disciplinary complaint based on conduct which the client is involved, pursuant to RPC 1.6(d)(2). This safe harbor provision does not apply to prospective or former clients, however.
As far a suggestion when dealing with online reviews, it is usually best to avoid confrontation. However, if an attorney feels a response is warranted, the lawyer can state that they disagree with the recitation of the facts, and cannot disclose confidential information not readily available to the public.
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