Can an Arizona lawyer reveal confidential information to respond to a former client's negative online review?
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This page answers the general question as of 2022. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
The committee addressed when a lawyer may divulge a former client's confidential information in responding to negative comments the former client posts on a public online forum. It began by noting that lawyers are always free to respond in ways that reveal no confidential information (general statements of disagreement, a commitment to quality, redirecting readers to other reviews or office policies). The hard question is whether a lawyer may go further and reveal confidential information, which ER 1.6(a) and ER 1.9(c) protect for former clients absent informed consent (which an unhappy reviewer will almost never give).
The only potentially applicable exceptions are the ER 1.6(d)(4) "self-defense" provisions, which permit disclosure reasonably necessary to establish a claim or defense in a controversy between lawyer and client, to defend against a charge or civil claim, or to respond to allegations in a proceeding. The committee noted that virtually all other authorities, including ABA Formal Opinion 496 (2021), say no, generally because an online critique is "informal" and not a formal proceeding. The committee rejected that reasoning: "controversy" has no formal-proceeding requirement in the rule, and ER 1.6 comment 12 says the right to respond arises when an assertion of misconduct is made, without awaiting any action, including by responding directly to a third party. It concluded that a client who publicly accuses a former lawyer of serious misconduct cannot use confidentiality as both sword and shield, and assumes the risk that the lawyer will disclose confidential information in a proportionate response. The committee found this consistent with Restatement (Third) section 64 comment e and with State Bar of Arizona Formal Op. 93-02 (1993).
The committee then imposed significant limits. The lawyer must first confirm through due diligence that the former client actually posted (or is responsible for) the comment, and may not respond to comments by others (opposing counsel, family, or friends) or to comments a client privately shared without intent to publicize. Disclosure is justified only where the comment makes specific, facially credible allegations that, if true, would support criminal or disciplinary charges or a malpractice claim (not mere expressions of displeasure like "this lawyer is a jerk" or "I can't believe they lost my case"). The lawyer must have an objectively reasonable belief that the comment is inaccurate, must reasonably believe lesser options (asking the site to remove the post, or asking the client to retract) are exhausted or unavailing, and must limit any disclosure strictly to what is necessary, avoiding anything that would embarrass or intimidate the client or compromise an ongoing matter. The committee recommended consulting another lawyer or the State Bar Ethics Hotline, and noted that often the best course is not to respond at all, since responses can raise a post's prominence in search results. The committee acknowledged its conclusion is a minority position and not a bright-line rule.
In practice
The opinion holds that, under Arizona ER 1.6(d)(4), a lawyer may reveal confidential information to rebut a former client's online accusation only when the accusation is specific, facially credible, and serious enough to threaten a charge, claim, or malpractice action, and only after confirming the client's authorship, forming a reasonable belief the accusation is false, exhausting lesser options, and narrowly tailoring the disclosure. Because Arizona stands apart from the ABA and most other states on this question, and because the rule and its comments may change, confirm the current ER 1.6 framework before relying on this guidance.
Common questions
Q: Can an Arizona lawyer post confidential details to rebut a bad online review?
A: Only in limited circumstances. The opinion concluded that disclosure is permitted under ER 1.6(d)(4) where the former client's post makes a specific, credible accusation of serious misconduct or incompetence, and then only to the extent reasonably necessary.
Q: Is Arizona's position the same as the ABA's?
A: No. The opinion expressly departs from ABA Formal Op. 496 and most other states, which treat an "informal" online critique as outside the self-defense exception. The committee found nothing in the rule's text requiring a formal proceeding.
Q: Does a general bad review ("this lawyer is a jerk") justify disclosure?
A: No. The opinion concluded that general expressions of opinion or displeasure with an outcome do not justify revealing confidential information; only specific, facially credible allegations of serious misconduct do.
Q: What must a lawyer do before responding?
A: The opinion requires the lawyer to confirm the former client actually posted the comment, hold a reasonable belief it is inaccurate, consider lesser options like asking the site or client to remove or correct it, and limit any disclosure to what is strictly necessary.
Background and rules framework
The opinion interprets Arizona ER 1.6 (confidentiality of information; Model Rule 1.6), in particular the ER 1.6(d)(4) self-defense exceptions and comments 12 and 19, together with ER 1.9(c) (extending confidentiality duties to former clients; Model Rule 1.9). The committee read "controversy" in the self-defense exception according to its ordinary meaning and concluded the exception is not limited to formal proceedings, relying on the rule's comment and on Restatement (Third) of the Law Governing Lawyers section 64.
Citations and references
Rules of Professional Conduct:
- MR 1.6 / Arizona ER 1.6(d)(4) (confidentiality; self-defense exceptions; comments 12, 19)
- MR 1.9 / Arizona ER 1.9(c) (duties to former clients)
Other authorities:
- Restatement (Third) of the Law Governing Lawyers section 64, cmt. e (proportionate public response to a public charge)
- State Bar of Arizona Formal Op. 93-02 (1993): disclosure where a former client's public allegations create a genuine controversy
Other opinions cited:
- ABA Formal Op. 496 (2021): contrary majority view on responding to online criticism
- Colorado Bar Op. 136 (2019): the minority view the committee aligns with
- New Jersey Op. 738; Texas Op. 662; New York Op. 1032; Pennsylvania Op. 2014-200: contrary authorities
See also
- ABA Formal Op. 496: Responding to Online Criticism
- CBA Formal Op. 136: Responding to Online Reviews
- NY State Bar Op. 1032: Replying to Online Reviews
- NY State Bar Op. 456: Suing a Client Over a Grievance
Source
- Landing page: https://www.azcourts.gov/cld/Attorney-Ethics-Advisory-Committee/Opinions-Issued-by-the-Committee
- Original PDF: https://www.azcourts.gov/Portals/0/26/Revised%20Draft%20EO-19-0010_1-11-8-22%20AH.pdf
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
SUPREME COURT OF ARIZONA
ATTORNEY ETHICS ADVISORY COMMITTEE
Ethics Opinion File No. EO-19-0010
The Attorney Ethics Advisory Committee was created in accordance with Rule 42.1 and Administrative Order Nos. 2018-110 and 2019-168.
ISSUE PRESENTED
When may a lawyer ethically divulge a former client’s confidential information in responding to
negative comments posted by that former client on a publicly accessible online forum -- for
example on a public social media page -- regarding the lawyer’s skills, integrity, or handling of a
matter in which the lawyer represented them?
APPLICABLE ARIZONA RULES OF PROFESSIONAL CONDUCT
ER 1.6 Confidentiality of Information
(a) A lawyer shall not reveal information relating to representation of a client unless the
client consents after consultation, except for disclosures that are implicitly authorized in
order to carry out the representation, and except as stated in paragraphs (b), (c) and (d) or
ER 3.3(a)(3).
*****
(d) A lawyer may reveal such information to the extent the lawyer reasonably believes
necessary:
*****
(4) to establish a claim or defense on behalf of the lawyer in a controversy between the
lawyer and the client, to establish a defense to a criminal charge or civil claim against the
lawyer based upon conduct in which the client was involved, or to respond to allegations in
any proceeding concerning the lawyer’s representation of the client.
****
Comment
****
[12] Where a legal claim or disciplinary charge alleges complicity of the lawyer in a client's
conduct or other misconduct of the lawyer involving representation of the client, the lawyer
may respond to the extent the lawyer reasonably believes necessary to establish a
defense. The same is true with respect to a claim involving the conduct or representation of
a former client. Such a charge can arise in a civil, criminal, disciplinary or other
proceeding and can be based on a wrong allegedly committed by the lawyer against the
client or on a wrong alleged by a third person, for example, a person claiming to have been
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defrauded by the lawyer and client acting together. The lawyer's right to respond arises
when an assertion of such complicity has been made. Paragraph (d)(4) does not require the
lawyer to await the commencement of an action or proceeding that charges such
complicity, so that the defense may be established by responding directly to a third party
who has made such an assertion. The right to defend also applies, of course, where a
proceeding has been commenced.
* * *
[19] Paragraph (d) permits disclosure only to the extent the lawyer reasonably believes the
disclosure is necessary to accomplish one of the purposes specified. Where practicable, the
lawyer should first seek to persuade the client to take suitable action to obviate the need
for disclosure. In any case, a disclosure adverse to the client's interest should be no greater
than the lawyer reasonably believes necessary to accomplish the purpose. If the disclosure
will be made in connection with a judicial proceeding, the disclosure should be made in a
manner that limits access to the information to the tribunal or other persons having a need
to know it and appropriate protective orders or other arrangements should be sought by the
lawyer to the fullest extent practicable.
ER 1.9 Duties to Former Clients
*****
(c) A lawyer who has formerly represented a client in a matter shall not thereafter:
(1) use information relating the representation to the disadvantage of the former
client except as these Rules would permit or require with respect to a client, or when
the information has become generally known; or
(2) reveal information relating to the representation except as these Rules would
permit or require with respect to a client.
OPINION
The rise of blogs and social media platforms on the internet enable a disgruntled client to spread
information – and misinformation – about their former lawyer to a wider and more diverse
audience than ever before, especially if readers choose to further disseminate the information. Most
online reviews are also more or less permanent; even if they become less prominent over time,
they may continue to show up in response to targeted searches for information about the lawyer.
A lawyer who becomes aware that a former client has posted unflattering comments or reviews
about the lawyer will therefore – understandably – want to respond. 1
1
This opinion addresses only the question of responding to online comments by a former client. While the ER 1.6
analysis would logically apply to a comment by a current client as well, issues of conflict-of-interest would likely
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As an initial matter, lawyers are free to respond to online comments in any manner that does
not reveal any confidential information or violate any other ethical or legal obligation of the
lawyer. For example, a lawyer may respond to a specific criticism with general comments that
express disagreement, affirm a commitment to quality representation, and redirect those
reading to other information about their relevant office policies, representation practices, or
comments by other clients expressing different views.
The question presented here, however, is whether there are any circumstances in which a lawyer
may go beyond general responses to address the former client’s criticism specifically, when
doing so would reveal confidential information about the former client as part of the lawyer’s
response.
Information relating to a lawyer’s representation of a client must be kept strictly confidential
under ER 1.6(a), unless the disclosure is impliedly authorized to carry out the representation,
the client consents after consultation, or an exception set forth in ER 1.6(b), (c), (d), or ER 3.3(a)
(3) applies. The duty to keep such information confidential is extended to former clients by ER
1.9(c). In the context of an unfavorable online comment or review by a former client,
informed consent is exceedingly unlikely, which means that disclosure of confidential
information will be improper unless permitted by one of the exceptions.
The only exceptions potentially applicable to the question presented here are found in
ER 1.6(d)(4), which contains what are commonly referred to as the “self-defense” exceptions.
This subsection allows a lawyer to disclose confidential information “to the extent the
lawyer reasonably believes necessary” to do any of the following:
• “establish a claim or defense on behalf of the lawyer in a controversy between the lawyer
or client”
• “establish a defense to a criminal charge or civil claim against the lawyer based upon
conduct in which the client was involved”
• “respond to allegations in any proceeding concerning the lawyer’s representation of the
client”
Because an online critique is not a formal “criminal charge or civil claim” or the initiation of
a disciplinary proceeding, ethics opinions addressing the issue generally focus on
whether negative online comments establish a “controversy” under the first self-defense
exception and, if so, whether disclosure of confidential information can ever be considered
reasonably necessary to establish a defense. Virtually all the ethics opinions that have
addressed the issue, including ABA Formal Opinion 496, which was issued in 2021, answer
“no” to one or both of those quest ions,
predominate if the comments are made by a current client. In addition, to the extent a lawyer wishes to terminate the
lawyer-client relationship as a result of online comments by the client, analysis of the requirements of ER 1.16 is
necessary. Those issues are beyond the scope of this Opinion.
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typically because of the “informal” nature of an online critique.2 Colorado may be the only state in
which an official ethics opinion has been issued that concludes otherwise.3
This focus on the “informality” of the online comments is, however, questionable for two reasons.
First, “controversy” has no specific defined meaning in the ethics rules. According to
dictionary.com, “controversy” means “a prolonged public dispute, debate or contention;
disputation concerning a matter of opinion” and “contention, strife, or argument.” That
clearly encompasses – indeed, aptly describes – a disagreement between a lawyer and the
lawyer’s former client about things like the lawyer’s competence, ethics, diligence,
responsiveness, performance, or billing practices, particularly when the client’s negative opinions
on such matters are expressed in a public forum.
Second, the language of the self-defense exceptions does not indicate that any of them applies only
after some sort of “formal” legal or administrative proceeding has been commenced,4 so the
informality of online remarks should not be considered dispositive. The comment to the rule also
makes this clear. It states that a lawyer may reveal confidential information about a former client as
part of a response to a third party who has alleged that the lawyer has been guilty of misconduct, “for
example, a person claiming to have been defrauded by the lawyer and client acting together.” ER
1.6, cmt. ¶ 12. The comment notes that the self-defense exceptions do not “require the lawyer to
await the commencement of an action or proceeding that charges such complicity” but instead that
“the defense may be established by responding directly to [the] third party who has made [the]
assertion,” the right to respond having arisen “when [the] assertion of [misconduct] has been
made.” This could include a response not only to the alleged fraud victim in the example given,
but also a lawyer for a former client alleging that the former lawyer committed malpractice, or bar
counsel calling the lawyer to discuss a bar charge filed by a current or former client.
What is problematic, therefore, about responding publicly to online allegations made by a former
client is less the informality of the allegations or some imagined lack of a “controversy,” but what
2
See ABA Formal Opinion 496, (January 13, 2021) (answering no to both questions based on the “informality” of
online critiques); New Jersey Supreme Court Advisory Committee on Professional Ethics Opinion 738 (2020) (“an
informal ‘controversy’ between a lawyer and a prospective or former client, arising from the posting of a negative
online review, does not fall within the safe harbor” of the controversy exception); State Bar of Texas Opinion No. 662
(2016) (“It is the opinion of the Committee that each of the exceptions stated above applies only in connection with
formal actions, proceedings or charges.”); New York State Bar Association Ethics Opinion 1032 (2014) (“Unflattering
but less formal comments on the skills of lawyers” do not justify disclosure of confidential information); Pennsylvania
State Bar Association Formal Opinion 2014-200 (“We conclude that a lawyer cannot reveal client confidential
information in a response to a client’s negative online review absent the client’s informed consent.”).
3
Colorado Bar Association Ethics Committee Opinion 136, A Lawyer’s Response to a Client’s Online Public
Commentary Concerning the Lawyer (April 15, 2019). There is also a disciplinary case, discussed in the Colorado
opinion, in which the Supreme Court of Wisconsin held that a criminal defense lawyer accused by a former client’s
appellate counsel of ineffective assistance did not violate the ethics rules by writing a letter to the prost-conviction-
proceeding judge that provided information defending his representation of the former client. In re Disciplinary Proc.
Against Thompson, 847 N.W.2d 793 (2014). The Court noted that the better course would have been to wait to be
subpoenaed and testify during a hearing in the post-conviction proceeding, but declined read into ER 1.6 a requirement
that disclosures in the ineffective assistance context must be limited to a “court-supervised setting.” Id., at 800, ¶ 37.
Given the nature of the disclosure in that case and the fact that the letter was sent in a formal-proceeding-adjacent
context, it is not relevant to the question addressed in this opinion.
4
The phrase “criminal charges” does not necessarily mean the commencement of a formal prosecution and “civil
claim” appears clearly intended to encompass more than a lawsuit that has already been filed.
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it means to “establish a defense” in this context. The lawyer, by posting an online response to the
former client’s online comments is responding not only to the person making the allegations but
to the members of the public before whom the accusations have been made. Unlike the alleged
fraud victim, bar counsel, and malpractice lawyer in the above examples, these third parties – in
the context of the internet, an unidentifiable and virtually limitless audience – are mere bystanders. Can
a public response containing confidential information ever be “reasonably necessary” to
“establish a defense” in such a situation?
We conclude that it may. A lawyer’s duty of confidentiality is for the protection of the lawyer’s
client and the client can forfeit that protection. The self-defense exceptions make it clear that a
client may not use confidentiality as both a sword and a shield in a formal legal or disciplinary
proceeding. Similarly, the client should not be able to make public accusations of
serious misconduct against their former lawyer and then invoke – or have a disciplinary authority
invoke on the client’s behalf – the lawyer’s duty of confidentiality to prevent the lawyer from making
an effective response or to punish the lawyer for having done so. An individual who elects to try
their former lawyer in the court of public opinion rather than before a tribunal and makes
serious accusations that put confidential information at issue assumes the risk that such
information will be disclosed in the lawyer’s response.
In addition, although the ABA Opinion correctly notes that online postings “may even contribute to
the body of knowledge available about lawyers for prospective clients seeking legal advice,” the
internet – as recent history has taught us, at some cost – is also a very effective tool for
spreading disinformation; disinformation that causes genuine harm to both public and
private interests. Untrue accusations of misconduct should be countered.
For these reasons, we conclude that a lawyer may reveal confidential client information to
the extent reasonably necessary to respond to a former client’s online remarks about the lawyer
that constitute an accusation of serious misconduct or incompetency. This approach is consistent
with the Restatement’s analysis of the issue. See RESTATEMENT (THIRD) OF THE LAW GOVERNING
LAWYERS § 64, cmt. e (2000) (“When a client has made a public charge of wrongdoing, a lawyer is
warranted in making a proportionate and restrained public response.”).
It is also consistent with State Bar of Ariz. Formal Op. 93-02 (1993). The lawyer who submitted
the ethics inquiry addressed in that opinion had previously represented a criminal defendant
in a prosecution for first degree murder that resulted in the defendant’s conviction. Another individual
who had been involved in the case later began writing a book about the case and, as part of that
effort, interviewed the defendant. The defendant asserted that his lawyer had “acted incompetently,
refused to follow instructions, failed to call certain witnesses, and engaged in a conspiracy with the
prosecution to ensure his conviction.” The author then contacted the lawyer to get the lawyer’s
response to the allegations and the lawyer asked the State Bar of Arizona whether that
response could include confidential information about the former client.
Though not entirely clear, the opinion’s characterization of the former client’s allegations
as “public” implies an underlying assumption that those allegations, and the lawyer’s response, would –
or at least might – be publicly disseminated in the published book. The opinion nevertheless
concludes that the lawyer could ethically disclose confidential information in this situation, which
might fairly be characterized as an “analog” version of an online exchange. The opinion rejects
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the notion that disclosure is only permitted in the context of formal proceedings and concludes
instead that “an attorney may disclose confidential information pursuant to ER 1.6(d) when the
client’s allegations against him or her are of such a nature that they constitute a genuine
controversy between the attorney and the client which could reasonably be expected to give rise
to legal or disciplinary proceedings.”
A lawyer contemplating the disclosure of confidential information in response to a former client’s
online accusations of serious misconduct must, however, carefully consider whether the
circumstances truly justify such disclosure.
Confirmation that the Former Client Posted the Comment
Disclosure of a former client’s confidential information is only justified when that former client is
responsible for the public posting of the negative comment. A lawyer may not reveal protected
information in response to critical comments made by others, such as an opposing counsel or party
or even the family member or friend of the client, without client consent. Nor can a client be held
responsible for a third party’s posting of comments made by the client to that third party without
any intent that they be further shared. Because online comments may be anonymous, and even
those that have attribution may not themselves establish with certainty that the former client is
actually the source of the comments, the first task for a lawyer who is considering responding in a
manner that reveals any confidential information is to conduct appropriate due diligence to confirm
that the client actually posted the comments in question or is otherwise responsible for the posting.
Nature of the Allegations
Comments posted online by an individual regarding the individual’s former lawyer can cover a
broad spectrum ranging from complaints about the outcome or cost of the representation, or the
client’s subjective opinion of the lawyer’s skills, to serious charges of malpractice or unethical
conduct. Any of these could establish a “controversy” between the lawyer and client, but a general
expression of the former client’s opinion of the lawyer – for example, “this lawyer is a real dummy
and charges too much” or “this lawyer is an unethical jerk” – will not justify the disclosure of
confidential information in response. Nor will expressions of displeasure at an outcome, such as
“I can’t believe this lawyer lost my case,” justify such disclosure.
If, however, the online comments make specific allegations that appear credible on their face and, if
true, would justify the filing of criminal or disciplinary charges or a malpractice claim against the
lawyer – for example, “after this lawyer lost my case at trial, I found out that the other side had
made a settlement offer that my lawyer never told me about,” or “this lawyer tanked my case
because they filed it after the statute of limitations had run” – they create a genuine threat that such
charges could be forthcoming, and justify disclosure to the extent necessary to counter that threat.5
Disclosure should be limited to these circumstances.
5
It should be noted that bar counsel can initiate a disciplinary investigation based on information from any source; it
need not be in response to the filing of a bar charge by a third party. Law enforcement agencies likewise can initiate
an investigation based on any information they have.
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Because lawyers have a duty to be truthful in all their dealings, a lawyer must, before posting
an online response that contains confidential information, also have an objectively reasonable
belief that the client’s comments are in fact inaccurate.
Necessity and Extent of Disclosure
Before disclosing confidential information, a lawyer must “reasonably believe that options
short of use or disclosure have been exhausted or will be unavailing or that invoking them
would substantially prejudice the lawyer's position in the controversy.” RESTATEMENT (THIRD)
OF THE LAW GOVERNING LAWYERS § 64, cmt. e (2000). The lawyer should, for example,
consider first asking the curator of the website to remove the comments, or asking the client to
retract or correct the comments.
In addition, any confidential information that is disclosed must be carefully limited to what is
truly necessary for a meaningful defense to the charges made, and of course the lawyer’s assertions
must be accurate. The lawyer must also scrupulously refrain from making comments or
revealing extraneous information that, to a reasonable reader, would appear designed to
intimidate or embarrass the client. And, if the matter being discussed is on-going, the lawyer
must refrain from making any statements that have a reasonable likelihood of compromising the
client’s position in the matter.
Using the examples given above, a lawyer might, in response to an allegation that the lawyer
failed to inform the client about a settlement offer, state – if true – that “In fact, I did inform the
client of the offer a day after it was made, and we discussed it on several occasions.” In
response to an accusation that the lawyer missed a statute-of-limitations deadline, the lawyer
can provide an explanation of why that is not accurate or, if accurate, why it was not the
lawyer’s fault. For example, if true, the lawyer might explain that “I calculated the
limitations deadline based on information provided to me by the client and filed the lawsuit
before that date. It was only later, during the course of discovery, that additional facts came to
light showing that the information provided by the client was inaccurate and the limitations
period had in fact ended earlier.”
Best Practices
No lawyer, however stoic, can read negative online comments posted by a former client
without having an emotional reaction and, if the comments are particularly outrageous or
derisive, a desire to not just set the record straight but to respond in kind. That is understandable.
But the ability to recognize and rise above one’s emotional impulses and determine what is
objectively justified is a necessary skill for a professional and ethical lawyer. A lawyer who is
considering responding to online client comments in a manner that will reveal confidential
information would be wise to seek the counsel of another lawyer or the State Bar of
Arizona’s Ethics Hotline to obtain a more dispassionate assessment of both the posted
comments and the lawyer’s proposed response. 6
A lawyer in this situation should also seriously consider not responding at all. The ABA
Opinion correctly observes that
6
ER 1.6 permits a lawyer to reveal confidential information for the purpose of obtaining ethics advice from another
lawyer.
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Any response frequently will engender further responses from the original poster. Frequently,
the more activity any individual post receives, the higher the post appears in search
results online. As a practical matter, no response may cause the post to move down in search
result rankings and eventually disappear into the ether. Further exchanges between the lawyer
and the original poster could have the opposite effect.
Conclusion
We recognize that this opinion does not enunciate a bright-line rule and that it reaches a
conclusion contrary to most other opinions addressing the same question. But we decline to
interpret ER 1.6(d)(4) in way that rigidly prohibits a lawyer from responding to online
remarks by a former client no matter how inaccurate and inflammatory. Such an
interpretation is required neither by the language of the rule itself nor considerations of public
policy.
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