Can a Kentucky lawyer reveal client confidential information to respond to a former client's negative online review or public criticism?

Plain-English summary

The opinion answers whether a lawyer may reveal client confidential information that is reasonably necessary to respond to a former client's public criticism. The answer is no. The opinion explains that the self-defense exception to the duty of confidentiality, SCR 3.130(1.6)(b)(3), is triggered by claims or disciplinary complaints against a lawyer, and that the exception does not encompass internet criticism.

The opinion illustrates the point with the Betty Tsamis matter discussed in Nathan Crystal's article Defending Against Internet Criticism: Silence is Golden, in which a lawyer who responded to a fired client's online complaint by disclosing why the client lost (including that the client had beaten up a coworker) was publicly reprimanded. The opinion concludes that the better course in most instances is to ignore the criticism.

For a lawyer who chooses to respond, the opinion offers a single non-confidential statement: that the lawyer's professional and ethical responsibilities do not allow revealing confidential client information in response to public criticism.

In practice

Under this opinion, a Kentucky lawyer responding to a former client's online or other public criticism may not invoke the self-defense exception in SCR 3.130(1.6)(b)(3) to disclose confidential information, because that exception applies to formal claims and disciplinary complaints rather than to public criticism. The opinion holds that, at the time of the opinion, the permissible response is to decline to engage on the merits, and it supplies a model statement confined to the lawyer's confidentiality obligations.

Common questions

Q: Does a negative online review let a lawyer reveal what happened in the representation?

A: No. The opinion concludes the self-defense exception in SCR 3.130(1.6)(b)(3) is triggered by claims or disciplinary complaints, not by internet criticism, so the lawyer may not disclose client confidences in response.

Q: How can a lawyer respond to a former client's public criticism without violating Rule 1.6?

A: The opinion suggests that a lawyer who wants to respond may state only that the lawyer's professional and ethical responsibilities do not allow revealing confidential client information in response to public criticism.

Q: Does it matter that the criticism is unfair or false?

A: The opinion does not create an exception for unfair criticism; it points to the Tsamis matter, where a lawyer who answered a client's online complaint by disclosing damaging facts was publicly reprimanded.

Background and rules framework

The opinion interprets SCR 3.130(1.6), Kentucky's confidentiality rule (Model Rule 1.6), focusing on the self-defense exception at subsection (b)(3), which permits disclosure to the extent reasonably necessary to establish a claim or defense in a controversy between the lawyer and client or to respond to allegations in a proceeding concerning the lawyer's representation. The opinion reads that exception as limited to claims and disciplinary complaints, not public commentary.

Citations and references

Rules of Professional Conduct:

• MR 1.6(b)(3) / SCR 3.130(1.6)(b)(3): self-defense exception to confidentiality.

Cases:

• People v. Isaac, 2016 WL 6124510 (Colo. 2016).
• State ex rel. Counsel for the Nebraska Supreme Court v. Tonderum, 840 N.W.2d 487 (Neb. 2013).

Other authorities:

• Nathan Crystal, Defending Against Internet Criticism: "Silence is Golden," 26 South Carolina Lawyer 12 (2014).
• Mark Fucile, Discretion Is the Better Part of Valor: Rebutting Negative Online Client Reviews, 83 Defense Counsel J. 84 (2016).

See also

• ABA Formal Op. 496: Responding to Online Criticism
• ABA Formal Op. 480: Confidentiality in Lawyer Blogging and Public Commentary
• ABA Formal Op. 511R: Confidentiality When Posting to Listservs

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-448.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Formal Ethics Opinion
KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-448
Issued: March 14, 2019

The Rules of Professional Conduct are amended periodically. Lawyers should consult the current version of the rule and comments, SCR 3.130 (available at http://www.kybar.org/237), before relying on this opinion.

Subject: Proposed self-defense opinion

Question: May a lawyer reveal client confidential information reasonably necessary to respond to a former client's public criticism?

Answer: No

Authorities: Rule 1.6 (b)(3), Crystal, Defending Against Internet Criticism: “Silence is Golden,” 26 South Carolina Lawyer 12 (2014); Fucile, Discretion in the Better Part of Valor: Rebutting Negative Online Client interviews, 83 Defense Counsel J. 84 (2016); People v. Issac, 2016 WL 6124510 (Col. 2016); State ex rel Counsel for the Nebraska Supreme Court v. Tonderum, 840 N.W. 487 (Nebraska 2013).

Question: How may a lawyer ethically respond to a former client's public criticism?

Answer: See Opinion

The self-defense exception to the duty of confidentiality (1.6(b)(3) is triggered by claims or disciplinary complaints against a lawyer. The exception does not encompass internet criticism. In Defending Against Internet Criticism: Silence is Golden, 26 South Carolina Law Review 12 (2014), Nathan Crystal uses the Betty Tsamis case to illustrate: After being fired a flight attendant hired Tsamis to seek unemployment benefits from the state. Apparently Tsamis learned after she was hired that the attendant had been fired because he beat up a female co-worker. After a hearing the claim was denied and the attendant complained about Tsamis on the internet. This eventually resulted in Tsamis being publicly reprimanded for posting the following:

This is simply false. The person did not reveal all the facts of the situation up front in our first and second meetings. . . . Despite knowing he would likely lose he chose to go forward with a hearing to try to obtain benefits. I dislike it very much when my clients lose but I cannot invent positive facts for clients when they are not there. I fell badly for him but his own actions in beating up a female coworker are what caused the consequences he is now so upset about.

In most instances the best advice is to ignore the criticism. For the lawyer who wants to respond, the Committee recommends the following:

My professional and ethical responsibilities do not allow me to reveal confidential client information in response to public criticism.

Note To Reader

This ethics opinion has been formally adopted by the Board of Governors of the Kentucky Bar Association under the provisions of Kentucky Supreme Court Rule 3.530. This Rule provides that formal opinions are advisory only.