Can a lawyer reveal confidential information to respond to a client's negative online review?

Plain-English summary

The opinion addresses whether a lawyer may respond to a negative online review by a current or former client, and what Model Rule 1.6 confidentiality permits. The central concern is confidentiality; the opinion expressly declines to address attorney-client privilege as a separate legal question. Relying on its earlier Formal Opinion 480, the opinion notes that information relating to a representation remains confidential even when drawn from the public record, so a lawyer cannot disclose it without the protections of Rule 1.6.

The opinion concludes that a client's negative comments do not create implied authorization to disclose, because responding to criticism is not necessary to carry out the representation. It then walks through the Rule 1.6(b) exceptions and finds only (b)(5), the self-defense exception, even arguably relevant. Two of that exception's branches plainly do not apply: an online review is not a "proceeding," and a public online post is not necessary to establish a defense to a charge or claim. As to the remaining branch, the opinion concludes "that, alone, a negative online review, because of its informal nature, is not a 'controversy between the lawyer and the client' within the meaning of Rule 1.6(b)(5), and therefore does not allow disclosure of confidential information relating to a client's matter."

The opinion adds that "even if an online posting rose to the level of a controversy between lawyer and client, a public response is not reasonably necessary" under Rule 1.6(b), because Comment [16] permits disclosure only to the extent reasonably necessary to accomplish a stated purpose. It surveys state opinions, agrees with the majority, and expressly disagrees with a Colorado opinion that would allow limited disclosure, stating that "a public posting that discloses confidential information goes beyond a direct response to the accuser allowed by Rule 1.6 and its explanatory Comments."

The opinion identifies permissible responses. A lawyer may request that the host remove the post (and, if the poster is not a client, may say so or note the post is inaccurate), may post an invitation to take the conversation offline, or may state that professional obligations do not permit a response. It cautions, citing Comment [4], that even a general disclaimer can be problematic if it could lead a third person to discover protected information or reveals the lawyer's involvement in the matter. A lawyer may respond directly and privately to a client or former client, but "must not disclose information relating to that client's representation online."

In practice

Under this opinion, a lawyer faced with a negative online review may not reveal information relating to the client's representation in a public response, because the review alone does not trigger the Rule 1.6(b)(5) self-defense exception and a public disclosure would not be reasonably necessary even if it did. The opinion identifies responses that stay within the rule: asking the website or search engine to take the post down; noting, where the poster is not a client, that no such representation occurred; posting a non-disclosing invitation to discuss the matter privately; or stating that professional obligations preclude a response. It cautions that even general statements can reveal or lead to protected information, and it permits a private direct response to the client or former client, or seeking the client's informed consent to respond.

Common questions

Q: A former client left a false one-star review. Can I post the facts to set the record straight?

A: Per the opinion, no, not if doing so reveals information relating to the representation. A negative review alone does not trigger the self-defense exception, and a public disclosure would exceed what Rule 1.6 allows even if it did.

Q: Does a bad review count as a "controversy" that lets me defend myself?

A: The opinion says no. It concludes that a negative online review, because of its informal nature, is not a controversy between the lawyer and the client within Rule 1.6(b)(5), so it does not permit disclosing confidential information.

Q: What responses are allowed?

A: The opinion permits asking the host to remove the post, posting a non-disclosing invitation to take the matter offline, or stating that professional obligations do not permit a response. If the reviewer was never a client, the lawyer may say so.

Q: Can I respond at all to the reviewer?

A: The opinion says a lawyer may respond directly and privately to a client or former client, and may seek the client's informed consent to respond, but must not disclose information relating to the representation online.

Background and rules framework

The opinion interprets Model Rule 1.6 (confidentiality of information). It applies Rule 1.6(a) and Comment [5] (implied authorization), the Rule 1.6(b) exceptions and in particular the self-defense exception in 1.6(b)(5), Comment [16] (disclosure only to the extent reasonably necessary), and Comment [4] (paragraph (a) also reaches disclosures that could lead a third person to discover protected information).

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 1.6(a) (confidentiality; implied authorization)
• ABA Model Rule 1.6(b)(5) (self-defense exception)
• ABA Model Rule 1.6, Comments [4], [5], [16]

Other opinions cited:

• ABA Formal Op. 480 (2018): public commentary and confidentiality
• ABA Formal Op. 476 (2016): disclosure limited to what is reasonably necessary

See also

• ABA Formal Op. 511R: Confidentiality When Posting to Listservs
• FL Bar Ethics Op. 21-1: Reviews From Non-Clients
• CA COPRAC Op. 2016-196: Attorney Blogging as Advertising

Source

• Landing page: ABA Formal Ethics Opinions index
• Original PDF: aba-formal-opinion-496.pdf