WISBAR June 22, 2023

Can a Wisconsin lawyer reveal client information to respond to a negative online review or social-media criticism?

Short answer: No. The opinion concludes that a lawyer may not reveal information relating to the representation in response to online criticism without the affected client's informed consent, and that the self-defense exception in SCR 20:1.6(c)(4) does not apply because informal online criticism is not a 'controversy' or 'proceeding' under the rule. The committee advises that no response is usually best, and any response must not reveal protected information.

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This page answers the general question as of 2023. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.

Disclaimer: Advisory only. Not binding precedent.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.

View original ethics opinion (PDF)

Plain-English summary

Opinion EF-23-01 (June 22, 2023) addresses what a lawyer may do when criticized online by a current, prospective, or former client or by a third party. The committee starts with the breadth of SCR 20:1.6(a), which protects all information relating to the representation regardless of source and even if publicly available, and applies that duty to prospective clients under SCR 20:1.18(b) and former clients under SCR 20:1.9(c). Because online complaints typically concern the lawyer's performance, the result, or the fee, all protected topics, there is little a lawyer can say in response without disclosing protected information, absent the client's informed consent or an applicable exception.

The committee then works through the exceptions. Implied authority does not apply, because responding to criticism is almost never necessary to advance the client's interests. Informed consent is possible but unlikely after a falling out, and must focus on the client's interests, not the lawyer's. The central question is the "self-defense" exception, SCR 20:1.6(c)(4), which allows disclosure to establish a claim or defense in a controversy between the lawyer and client, to defend against a criminal charge or civil claim, or to respond to allegations in a proceeding. The committee concludes, with the weight of authority and ABA Formal Opinion 496, that online criticism is neither a "proceeding" nor a "controversy" in the sense the rule uses, so the exception does not permit a public response that reveals protected information; reading "controversy" to include informal disputes would gut client confidentiality and could violate SCR 20:1.8(b)'s bar on using information to the client's disadvantage.

The committee also rejects the idea that a client who posts about the lawyer waives confidentiality. It distinguishes the evidentiary attorney-client privilege (which a client can waive) from the ethical duty under SCR 20:1.6 (which has no "waiver" and is not lifted by the client's own disclosures). Finally, the committee describes permissible options drawn from ABA Formal Opinion 496: ask the platform to remove the post, contact the poster privately, or simply ignore it, and it offers a sample restrained reply stating that professional obligations prevent the lawyer from commenting further. The committee's bottom line is that no response will almost always be the best option.

In practice

Under this opinion, conduct matching its fact pattern, a Wisconsin lawyer who wants to answer a negative online review or post, is constrained: the lawyer may not reveal information relating to the representation without the affected client's informed consent, and the self-defense exception in SCR 20:1.6(c)(4) does not authorize a public, protected-information response to informal online criticism. The committee concludes that a lawyer may instead ask the platform to remove the post, contact the poster privately, or ignore the criticism, and that any reply should be restrained and proportional and reveal no protected information.

Common questions

Q: Can a lawyer post details about the representation to rebut a bad review?

A: No. The committee concludes a lawyer may not reveal information relating to the representation in response to online criticism without the affected client's informed consent.

Q: Does the "self-defense" exception let a lawyer respond online?

A: No. The committee concludes SCR 20:1.6(c)(4) does not apply because informal online criticism is not a "proceeding" or a "controversy" as the rule uses those terms.

Q: If the client posted about the matter, did they waive confidentiality?

A: No. The committee distinguishes the evidentiary privilege, which a client may waive, from the ethical duty under SCR 20:1.6, which has no waiver and is not lifted by the client's own disclosures.

Q: What can a lawyer do about an unfair online review?

A: Several non-disclosing options. The committee suggests asking the platform to remove the post, contacting the poster privately, or ignoring it, and offers a restrained sample reply that reveals no protected information.

Q: Is it ever best to respond?

A: Usually not. The committee strongly believes no response at all will almost always be the lawyer's best option.

Background and rules framework

The opinion interprets SCR 20:1.6 / Model Rule 1.6 (confidentiality), focusing on the self-defense exception SCR 20:1.6(c)(4) (the ABA's Rule 1.6(b)(5)). It reads that exception narrowly and in light of SCR 20:1.8(b) (no use of information to the client's disadvantage), and extends the confidentiality duty to prospective clients under SCR 20:1.18(b) and former clients under SCR 20:1.9(c). SCR 20:4.2 separately bars a direct response to a represented opponent who posts criticism. The committee relies heavily on ABA Formal Opinions 496 and 480 and on the distinction between confidentiality and the evidentiary privilege under Wis. Stat. section 905.03.

Citations and references

Rules of Professional Conduct:

Wis. SCR 20:1.6, 20:1.6(c)(4) / Model Rule 1.6 (confidentiality; self-defense exception)
Wis. SCR 20:1.8(b) / Model Rule 1.8 (no use of information to the client's disadvantage)
Wis. SCR 20:1.9(c) / Model Rule 1.9 (duties to former clients)
Wis. SCR 20:1.18(b) / Model Rule 1.18 (duties to prospective clients)
Wis. SCR 20:4.2 / Model Rule 4.2 (communication with a represented person)

Other opinions cited:

ABA Formal Opinion 496 (2020): a lawyer may not respond to online criticism with protected information
ABA Formal Opinion 480 (2018): confidentiality covers publicly available information
Pennsylvania Bar Formal Op. 2014-200; Texas Op. 662 (2016): the self-defense exception does not reach online criticism

Source

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