Your law partner emails you over the weekend and asks, “did you see our Google Reviews?” Not knowing that you even had Google reviews you surf over to find that not only does your firm have 2 out of 5 stars average, but 2 of the reviews are scathing and incorrect. You want to respond and make it clear that these reviews are not factual and that there are mitigating circumstances. But, can you? That is the subject of a recently proposed ethics opinion from the NC State Bar Ethics Committee.
The State Bar Ethics Committee voted to publish one opinion for comment this quarter: proposed 2020 FEO 1, “Responding to Negative Online Reviews”. This proposed opinion states that a lawyer may post a proportional and restrained response to a negative online review but may not disclose confidential client information.
The proposed opinion states: “In response to the former client’s negative online review, [a] Lawyer may post a proportional and restrained response that does not reveal any confidential information.” It goes on to explore any possible exceptions to the duties under Rule 1.6(b) Confidentiality, including Rule 1.6(b)(6) Self Defense Exception, but summarizes that the self-defense exception applies to legal claims and disciplinary charges arising in civil, criminal, disciplinary or other proceedings. A negative online review does not fall within these categories and, therefore, does not trigger the self-defense exception.
What is a “proportional and restrained response”? The Pennsylvania State Bar Ethics Committee provides a sample response to a negative online review: “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.”
The State Bar Ethics Committee welcomes and encourages feedback on the proposed 2020 FEO 1. Comments on the proposed opinion may be sent to Lanice Heidbrink at email@example.com by close of business on Monday, March 30, 2020.
Applicable Disciplinary Cases
Lawyers have been disciplined for their responses to negative online reviews that violated RPC 1.6. In Colorado the outcome of “People v. James C. Underhill Jr” was that attorney James C. Underhill, Jr. was suspended after responding to online reviews from two separate clients in a manner that the court determined violated RPC 1.6(a). He additionally sued the first client for defamation and communicated with them ex parte despite their counsel’s repeatedly imploring with him not to do so.
In Illinois, the outcome of “In The Matter Of: BETTY TSAMIS, Attorney-Respondent, No. 6288664” was that Ms. Tsamis was reprimanded by the Hearing Board. After posting two negative reviews about Ms. Tsamis on the legal directory Avvo, (the first of which was removed by Avvo) Ms. Tsamis responded to the second:
“This is simply false. The person did not reveal all the facts of his situation up front in our first and second meeting. [sic] When I received his personnel file, I discussed the contents of it with him and informed him that he would likely lose … I feel 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 Georgia the outcome of “In The Matter Of Margrett A. Skinner. Per Curiam” was that Ms. Skinner received a public reprimand for revealing personal and confidential information about the client that Ms. Skinner had gained from the attorney-client relationship in response to a negative review on a public website.
What You Need to Know
Lawyers need to establish the following for online review sites:
- Do I have a profile?
- Are there any reviews?
- Are they accurate?
- Can I get it removed?
- Should I respond?
To find out if your firm has a profile, what is being said about you, and to stay on top of reviews see the CPM post “Be Proactive: Online Reviews and Reputation Management” to learn more about understanding your firm’s online reputation and proactively managing it.
How to Get Reviews Taken Down
If it a review is inaccurate, they weren’t your client, if the review is threatening, includes hate speech or is lewd you may have some recourse directly with the review site in getting it taken down. Most of them have a “report this review” and then someone will look at it.
Below are links to instructions on how to get a review removed from these review sites:
Should I Sue?
Suing for defamation may invoke more attention and more negative press. “Whatever the reason for the lawsuit, attorney Josh King, former general counsel of Avvo.com, says any legal action is not a good idea “The idea of pursuing a defamation lawsuit over an online posting is about the stupidest thing you can do as a business owner,” King said. “It simply raises the profile of the issue, it ignores an opportunity to respond to customer feedback and it lets other consumers feel that you as a business are more interested in covering up negative feedback than actually responding to it and addressing it.”
An illustrative case involves the law firm Tuan A. Khuu and Associates who sued a part-time student Lan Cai for defamation for writing negative online reviews about their representation. Not only did they lose the case, they paid nearly $27,000 in attorney’s fees to the defendant. Michael Fleming, the attorney representing Lan Cai, used the Texas anti-SLAPP law as part of her defense.
There are some instances in which attorneys have been initially successful in winning defamation lawsuits, but they are few and far between. One such case was when a Florida appellate court in January awarded $350,000 to Florida divorce attorney Ann-Marie Giustibelli after a client allegedly defamed her on Avvo. In another case in June 2016, a California court ordered Yelp to take down an allegedly defamatory review of a law firm, Hassell Law Group, but subsequently lost in an appeal to the California Supreme Court in 2018, which issued a decision allowing Yelp to let the reviews remain online.
What About Non-Disparagement Clauses?
A number of companies have tried to add non-disparagement clauses in contracts to get clients to agree not to post bad online reviews. In California, AB 2365 subjects businesses to fines for contracts including these types of provisions. Maryland passed a similar law, referred to as “the right to Yelp”. Now federal law, Pub.L. 114-258 (the Consumer Review Fairness Act of 2016) prohibits non-disparagement clauses.
The most effective responses to negative feedback online can be a simple comment. This can send a powerful message to the next reader about your professionalism and interest in feedback. Rather than arguing the substance of what the reviewer wrote, try to be responsive, empathetic and thoughtful. Getting a negative review is frustrating, but responding well, along with your other, positive reviews, goes a long way toward deflecting this negative feedback.
But, should you respond at all? Currently, the answer is yes. A measured response shows a willingness to “own” the comment and this is expected in today’s social atmosphere. You also may get in the final word.
The Best Defense is a Good Offense
Having an excellent web presence that you control will help determine what people see in search engine results and review sites. This can include any and all the following:
- Website and/or
- Social media presence
Additionally, you may consider giving clients an outlet to give you feedback directly, rather than going online to complain. The blog post “Avoid Bad Reviews by Requesting Client Feedback” outlines some ideas for checking in with your clients with satisfaction surveys. At the close of a matter, ask happy clients if they would be willing to provide feedback. Getting reviews from clients involves timing – ask them as soon as the matter is over, otherwise they may not be as interested in participating. Also, the representing attorney should do the asking, this is not a job to be given to support staff.
Always remember, simplicity is key! It might seem like adding another step to an already busy workday, but by giving clients a platform to feel they’re complaints are heard, you can prevent bad reviews from popping up online. Take charge of your online reputation by stopping bad reviews before they start!