Can a Texas lawyer post a public reply to a former client's negative online review, and how much can the lawyer reveal to rebut it?
Texas Ethics Opinion 662: Responding to a Former Client's Negative Online Review
Short answer: Per the Committee, a lawyer may not reveal a former client's confidential information just to respond to a negative online review (Rule 1.05's exceptions apply only to formal actions, proceedings, or charges), but the lawyer may post a proportional, restrained response that discloses no confidential information.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the Texas Disciplinary 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. The opinion text is reproduced at the bottom; the official source (linked) controls.
Plain-English summary
The opinion addresses a lawyer whose former client posted a negative review on an internet review site. The lawyer believes the comments are false and wants to post a public response revealing only enough to rebut them. The Committee notes that while vendors of ordinary goods or services can respond freely, a lawyer's duty of confidentiality limits what may be revealed about a former client.
Rule 1.05(a) defines "confidential information" broadly, covering not just privileged information but all information relating to or furnished by the client and acquired during or by reason of the representation. The opinion concludes a lawyer may not publicly reveal a former client's confidential information absent an applicable Rule 1.05 exception, and this holds even if the information has become generally known. The Committee examines the exceptions in Rule 1.05(c) and (d), including subsections allowing disclosure to enforce a claim or establish a defense in a controversy between lawyer and client, to defend against a claim of wrongful conduct, to respond to allegations in a proceeding concerning the representation, or to prove the value of services. It holds each of these applies only in connection with formal actions, proceedings, or charges; none can reasonably be read to permit public disclosure merely because a former client posted a negative review. The opinion notes this is consistent with guidance from LACBA Opinion 525, the Bar Association of San Francisco Opinion 2014-1, NYSBA Opinion 1032, and Pennsylvania Bar Association Formal Opinion 2014-200.
The Committee concludes a lawyer may still post a response that is proportional and restrained and reveals no confidential information, offering the Pennsylvania opinion's suggested response as an example that would not violate the Texas rules. Nothing in the opinion prevents a lawyer from seeking judicial relief against a former client who commits defamation or other actionable misconduct online.
In practice
Under this opinion, and under the Texas rule as it stood at the time of the opinion, a lawyer responding to a former client's negative online review may not reveal any confidential information as defined in Rule 1.05. The opinion holds the Rule 1.05(c) and (d) exceptions apply only to formal actions, proceedings, or charges, not to an online review, and that a lawyer may post only a proportional, restrained response that discloses no confidential information and otherwise complies with the rules; the opinion does not foreclose pursuing judicial relief for defamation.
Common questions
Q: A former client trashed me online and it's false. Can I post the real story?
A: Per Opinion 662, no, not if it reveals confidential information; the opinion holds Rule 1.05's exceptions do not authorize public disclosure simply to answer a negative review.
Q: Can I respond at all?
A: Yes. The opinion states a lawyer may post a proportional, restrained response that reveals no confidential information, and it cites the Pennsylvania bar's suggested wording as an acceptable example.
Q: Does it matter if the information is already public?
A: The opinion says a lawyer still may not reveal confidential information in this context even though it may have become generally known, distinguishing Rule 1.05(b)(3) (use to a former client's disadvantage once generally known) from the general prohibition on revelation in Rule 1.05(b)(1).
Background and rules framework
The opinion interprets Texas Disciplinary Rule 1.05 (confidentiality of information), which corresponds to ABA Model Rule 1.6. The analysis turns on the broad definition of confidential information in Rule 1.05(a) and on whether the disclosure exceptions in Rule 1.05(c) and (d) reach a public response to an online review.
Citations and references
Rules of Professional Conduct:
- MR 1.6 (confidentiality of information)
- Texas Disciplinary Rules 1.05(a), 1.05(b), 1.05(c), 1.05(d)
Other opinions cited:
- Los Angeles County Bar Association Formal Opinion No. 525 (Feb. 2013)
- Bar Association of San Francisco Ethics Opinion 2014-1 (Jan. 2014)
- New York State Bar Association Ethics Opinion 1032 (Oct. 2014)
- Pennsylvania Bar Association Formal Ethics Opinion 2014-200 (2014)
See also
- ABA Formal Op. 496: Responding to Online Criticism
- ABA Formal Op. 479: The "Generally Known" Exception to Former-Client Confidentiality
- TX Ethics Op. 648: Sending Confidential Information by Email
Source
- Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-662/
- Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_662.pdf
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
QUESTION PRESENTED
May a Texas lawyer respond publicly to a former client's adverse comments on the internet? If so, what information may the lawyer disclose?
STATEMENT OF FACTS
A former client posted negative comments about a Texas lawyer on an internet review site. The lawyer believes that the client's comments are false. The lawyer is considering posting a public response that reveals only enough information to rebut the allegedly false statements.
DISCUSSION
The internet allows consumers to publish instant reviews and comments about goods or services. Once posted, consumer reviews are usually searchable, easily accessible to other potential consumers, and effectively permanent. With the internet becoming an increasingly common source of referrals for legal services, consumer reviews on various sites have assumed a greater importance for attorneys in recent years.
Vendors of commercial goods or services are relatively free to respond to negative reviews as they see fit. But when a former client posts a negative review about a lawyer, the lawyer's duty of confidentiality limits the information the lawyer may reveal in a public response.
In general, Rule 1.05 of the Texas Disciplinary Rules of Professional Conduct defines the scope and extent of a Texas lawyer's duty of confidentiality. Rule 1.05(a) broadly defines "confidential information" to include not only information protected by the lawyer-client privilege but also "all information relating to a client or furnished by the client, other than privileged information, acquired by the lawyer during the course of or by reason of the representation of the client."
A lawyer may not publicly reveal the confidential information of a former client unless expressly permitted by an exception stated in Rule 1.05. Absent an applicable exception found in Rule 1.05, a lawyer may not post a response to a negative review that reveals any information protected by the lawyer-client privilege, or otherwise relating to a client or furnished by the client, or acquired by the lawyer during the course of or by reason of the representation of the client. This is true even though the information may have become generally known. Compare Rule 1.05(b)(3) (allowing lawyer to use confidential information to the disadvantage of a former client after the information has become generally known) with Rule 1.05(b)(1) (generally prohibiting revelation of confidential information absent an applicable exception).
No exception in Rule 1.05 allows a lawyer to reveal information in a public forum in response to a former client's negative review. The only exceptions potentially applicable to the facts presented in this opinion appear in Rule 1.05(c) and (d):
"(c) A lawyer may reveal confidential information:
(5) To the extent reasonably necessary to enforce a claim or establish a defense on behalf of the lawyer in a controversy between the lawyer and the client.
(6) To establish a defense to a criminal charge, civil claim or disciplinary complaint against the lawyer or the lawyer's associates based upon conduct involving the client or the representation of the client.
(d) A lawyer also may reveal unprivileged client information:
(2) When the lawyer has reason to believe it is necessary to do so in order to:
(ii) defend the lawyer or the lawyer's employees or associates against a claim of wrongful conduct;
(iii) respond to allegations in any proceeding concerning the lawyer's representation of the client; or
(iv) prove the services rendered to a client, or the reasonable value thereof, or both, in an action against another person or organization responsible for the payment of the fee for services rendered to the client."
It is the opinion of the Committee that each of the exceptions stated above applies only in connection with formal actions, proceedings or charges. The exceptions to Rule 1.05 cannot reasonably be interpreted to allow public disclosure of a former client's confidences just because a former client has chosen to make negative comments about the lawyer on the internet. This approach is consistent with the guidance issued by the ethics authorities in other jurisdictions. See, e.g., Los Angeles County Bar Association Professional Responsibility and Ethics Committee Formal Opinion No. 525 (Feb. 2013); Bar Association of San Francisco Ethics Opinion 2014-1 (Jan. 2014); New York State Bar Association Ethics Opinion 1032 (Oct. 2014); and Pennsylvania Bar Association Formal Ethics Opinion 2014-200 (2014).
Accordingly, a lawyer may not reveal confidential information, as that term is defined in Rule 1.05, merely to respond to a former client's negative review on the internet. A lawyer may, however, post a response to a former client's negative review so long as the response is proportional and restrained and does not reveal confidential information or violate any other provision of the Texas Disciplinary Rules. For example, posting the following response, suggested in Pennsylvania Bar Association Formal Ethics Opinion 2014-200 (2014), would not violate the Texas Disciplinary Rules:
"A lawyer's duty to keep client confidences has few exceptions and in an abundance of caution I do not feel at liberty to respond in a point by point fashion in this forum. Suffice it to say that I do not believe that the post presents a fair and accurate picture of the events."
Nothing in this opinion is intended to suggest that a lawyer may not seek judicial relief against a former client who commits defamation or other actionable misconduct through an internet publication.
CONCLUSION
Under the Texas Disciplinary Rules of Professional Conduct, a Texas lawyer may not publish a response to a former client's negative review on the internet if the response reveals any confidential information, i.e., information protected by the lawyer-client privilege, or otherwise relating to a client or furnished by the client, or acquired by the lawyer during the course of or by reason of the representation of the client. The lawyer may post a proportional and restrained response that does not reveal any confidential information or otherwise violate the Texas Disciplinary Rules of Professional Conduct.
Tex. Comm. On Professional Ethics, Op. 662 (2016)