Can a lawyer reveal client confidences to rebut a former client's negative online review?
NY State Bar Ethics Opinion 1032: Responding to a former client's online criticism
Short answer: A lawyer may not reveal a former client's confidential information solely to respond to the client's criticism on a lawyer-rating website, because the self-defense exception in Rule 1.6(b)(5)(i) applies only to a formal "accusation," such as a civil, criminal, or disciplinary proceeding, and an informal negative review is not such an accusation.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York State Bar Association's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.
About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.
Plain-English summary
A New York law firm believed a "disgruntled" former client had unfairly characterized its representation on a lawyer-review website, saying the firm provided inadequate services, communicated poorly, and did not achieve the client's goals. The posting revealed no confidential information and did not refer to the underlying matter, and the former client had filed no civil or disciplinary complaint. The firm wanted to post a response telling its side, which would require using confidential information, and asked whether it could (¶¶ 1-3).
The committee explained that the information the firm wanted to use was "confidential information" under Rule 1.6(a), and that Rule 1.9(c) generally bars a lawyer from using or revealing a former client's confidential information. It then turned to the self-defense exception, Rule 1.6(b)(5)(i), which permits a lawyer to reveal confidential information to the extent reasonably necessary "to defend the lawyer ... against an accusation of wrongful conduct" (¶¶ 4-6).
The committee held that this exception does not apply to an informal website posting. The key word is "accusation," which it read, drawing on dictionary definitions and a leading treatise, to mean something more than "casual venting." Comment [10] to Rule 1.6, which speaks of a "claim or charge" arising in a civil, criminal, disciplinary, or other proceeding, supported reading the exception to require a formal proceeding. New York case law allowing self-defense disclosure had "invariably" involved formal proceedings like malpractice suits, disqualification motions, or sanctions, and the committee cited the Illinois Tsamis discipline for revealing confidential information in response to an AVVO review (¶¶ 7-11).
The committee acknowledged that a formal proceeding need not actually be commenced; a material threat of a proceeding might suffice. But no such threat existed here. It also declined to decide whether a negative posting could waive a client's confidentiality, since the facts did not raise waiver. The committee framed its result as protecting the purpose of confidentiality while leaving the self-defense exception intact for genuine accusations, and noted that unflattering informal comments about lawyers are an inevitable incident of public practice (¶¶ 12-16).
In practice
Under the New York rules as they stood at the time of the opinion, the opinion holds that a lawyer may not disclose a former client's confidential information solely to rebut a negative online review. Per the opinion, the self-defense exception is triggered by a formal "accusation," meaning a civil, criminal, disciplinary, or similar proceeding, or at least a material threat of one, not by informal criticism. The committee did not decide whether a posting could ever waive confidentiality, leaving that for a case where the facts raise it, and it noted that other jurisdictions, working from differently worded rules, have reached varying results.
Common questions
Q: Can a lawyer use client confidences to answer a bad online review?
A: No. The committee concluded a lawyer may not disclose a former client's confidential information solely to respond to criticism on a client-review website (¶ 16).
Q: Why doesn't the self-defense exception apply?
A: Because the exception requires an "accusation," which the committee read to mean a formal proceeding such as a lawsuit, disciplinary complaint, or sanctions motion, not informal "venting" online (¶¶ 8-10).
Q: Does a lawsuit have to be filed before the exception applies?
A: Not necessarily. The committee said a material threat of a proceeding might trigger the exception, but found no such threat in a website posting alone (¶ 13).
Q: Could a negative posting waive the client's confidentiality?
A: The committee did not decide. It assumed confidentiality was not waived because the facts did not raise the question (¶ 14).
Background and rules framework
The opinion interprets New York Rule 1.6 (confidentiality and the self-defense exception in 1.6(b)(5)(i)) and Rule 1.9(c) (continuing duties to former clients), corresponding to ABA Model Rules 1.6 and 1.9. The analysis turns on the meaning of "accusation" in the self-defense exception and whether an informal online review qualifies.
Citations and references
Rules of Professional Conduct:
- MR 1.6 / NY RPC 1.6(a), 1.6(b)(5)(i) (confidentiality; self-defense exception)
- MR 1.9 / NY RPC 1.9(c) (duties to former clients)
Cases:
- Meyerhofer v. Empire Fire & Marine Ins. Co., 497 F.2d 1190 (2d Cir. 1974), self-defense disclosure in a formal proceeding
- In re Tsamis, No. 2013PR00095 (Ill. Att'y Reg. & Disc. Comm. 2014), discipline for disclosing client information in response to an AVVO review
Other opinions cited:
- N.Y. County 732 (2004): disclosure permitted if the client files a complaint or claim
- San Francisco Op. 2014-1; Los Angeles County Op. 525 (2012); Arizona Op. 93-02: varying results under other states' rules
See also
- NY State Bar Op. 1118: Disclosing confidences to collect a fee
- NY State Bar Op. 1052: Paying clients a credit to rate the lawyer online
- NY State Bar Op. 1078: Confirming there is no will to a former client's son
Source
- Landing page: https://nysba.org/ethics-opinion-1032/