Can a Colorado lawyer respond publicly to a client's negative online review?

Plain-English summary

Opinion 136 addresses whether and how a lawyer may respond online to negative reviews posted by the lawyer's current, former, or prospective client. The threshold answer is yes: no Colorado rule specifically bars a lawyer from responding. But the duty of confidentiality in Rule 1.6(a) (current clients) and Rule 1.9(c) (former clients), extended to prospective clients by Rule 1.18(b), prohibits revealing information relating to the representation absent the client's informed consent or an applicable exception. The Committee stresses that this duty covers all information relating to the representation, whatever its source, not just privileged communications, and that under Colorado disciplinary authority it includes the client's identity, the nature of the representation, and billing information.

The opinion finds the usual permissions a poor fit for review responses. Express informed consent is unlikely, and consent cannot be implied merely because the client chose to post publicly (the Committee cites People v. Lopez for the rule that informed consent cannot be implied). The "impliedly authorized to carry out the representation" permission also does not fit, because publicly defending one's performance is not carrying out the representation. That leaves the self-defense exception in Rule 1.6(b)(6), which allows disclosure to establish a claim or defense in a controversy between the lawyer and client. The Committee, drawing on People v. Isaac and People v. Underhill (Colorado PDJ decisions disciplining lawyers who disclosed sensitive client information in online rebuttals) and on Arizona Op. 93-02 and In re Thompson (Wisconsin), concludes that a negative review may create a "controversy" even without a pending proceeding, but that any disclosure is permitted only to the extent the lawyer reasonably believes necessary to mount a defense.

The opinion's practical bottom line is cautionary: Colorado authority shows clearly how a lawyer may not respond (by needlessly disclosing embarrassing client information), but gives little guidance on exactly what a permissible response looks like, and does not definitively resolve whether online criticism alone creates a Rule 1.6(b)(6) controversy. For a lawyer wanting to stay safely within the rule, the Committee quotes, with approval, a Pennsylvania Bar suggested response that declines to address the review point-by-point and simply states that the post is not a fair and accurate picture of events.

In practice

The opinion holds that, under the Colorado rules as they stood at the time of the opinion, a lawyer's ability to publicly rebut a client's online criticism is sharply limited by confidentiality. Per the opinion, a lawyer may respond, but may not reveal information relating to the representation unless the client gives informed consent (which cannot be implied from the client's own post) or the Rule 1.6(b)(6) self-defense exception applies, and any disclosure under that exception is confined to what is reasonably necessary to establish the lawyer's claim or defense in a genuine controversy. The opinion identifies the safest course it describes as a non-substantive response that does not disclose client information, quoting the Pennsylvania Bar's model language, and it notes the law is unsettled on whether an online review by itself creates the required controversy.

Common questions

Q: A former client posted a false one-star review. Can I correct the record online?

A: Only within strict limits. The opinion concludes you may respond, but Rule 1.9(c) bars revealing information relating to the representation unless the client consents or the Rule 1.6(b)(6) self-defense exception applies, and then only as reasonably necessary to establish a claim or defense.

Q: Doesn't the client waive confidentiality by posting publicly?

A: No. The opinion concludes informed consent cannot be implied, citing People v. Lopez, so the client's decision to post does not authorize the lawyer to disclose otherwise protected information.

Q: When does the self-defense exception let me disclose client information?

A: When the criticism creates a controversy between the lawyer and client and disclosure is reasonably necessary to establish a claim or defense. The opinion, relying on Isaac, Underhill, and out-of-state authority, says a controversy can exist without a pending proceeding, but disclosure is limited to what is reasonably necessary.

Q: What is a safe way to respond?

A: The opinion endorses a non-substantive reply, quoting Pennsylvania Bar Formal Op. 2014-200's suggested language declining to respond point-by-point and stating the post is not a fair and accurate picture of events.

Background and rules framework

The opinion interprets Colo. RPC 1.6 (confidentiality), centering on 1.6(a) and the self-defense exception in 1.6(b)(6) and Comments [3], [5], and [10], together with Rule 1.8(b) (no use of client information to the client's disadvantage), Rule 1.9(c) (former-client confidentiality), and Rule 1.18(b) (prospective-client confidentiality). It relies on Colorado PDJ decisions (Albani, Isaac, Underhill) and on persuasive out-of-state authority and the Restatement (Third) of the Law Governing Lawyers section 64.

Citations and references

Rules of Professional Conduct:

• Colo. RPC 1.6 / Model Rule 1.6 (confidentiality; 1.6(b)(6) self-defense exception)
• Colo. RPC 1.8(b) / Model Rule 1.8(b) (use of client information to the client's disadvantage)
• Colo. RPC 1.9(c) / Model Rule 1.9(c) (former-client confidentiality)
• Colo. RPC 1.18(b) / Model Rule 1.18(b) (prospective-client confidentiality)

Cases:

• People v. Isaac, 2016 WL 6124510 (Colo. O.P.D.J. 2016), disclosure in online rebuttal exceeded the self-defense exception
• People v. Underhill, 2015 WL 4944102 (Colo. O.P.D.J. 2015), discipline for disclosing client confidences online
• People v. Lopez, 845 P.2d 1153 (Colo. 1993), informed consent cannot be implied
• In re Thompson, 847 N.W.2d 793 (Wis. 2014), "controversy" need not be court-supervised

Other opinions cited:

• State Bar of Ariz. Ethics Op. 93-02 (1993): self-defense exception and former-client allegations
• Pa. Bar Ass'n Formal Op. 2014-200 (2014): response to a client's negative online review

See also

• ABA Formal Op. 496: Responding to Online Criticism
• NJ ACPE Op. 738: Responding to Negative Online Reviews
• OR Bar Op. 2005-104: Confidentiality Self-Defense Exception

Source

• Landing page: https://www.cobar.org/ethicsopinions
• Original PDF: https://www.cobar.org/Portals/COBAR/Repository/committees/1/20190311%20Online%20Reviews.pdf