The Ethics of Seeking or Responding to Online Reviews
There is no question that online reviews are a critical resource for consumers when purchasing goods and services, and that includes legal services. Research shows that the vast majority of consumers trust online reviews as much as a personal recommendation from a friend.[1] Knowing this, it can be particularly upsetting when a former client trashes us in an online review. With our reputation on the line, our every instinct is to fire off a quick response and set the record straight. Unfortunately, unlike other vendors and service providers, lawyers are governed by a set of ethical rules that strictly limit what can be done in this situation.
The issue is one of confidentiality. Rule 1.05 of the Texas Disciplinary Rules of Professional Conduct (TDRPC) defines confidential information very broadly. In addition to privileged communications, it includes “all information relating to a client or furnished by a client” that is “acquired by the lawyer during the course of or by reason of the representation of the client.” Tex. Disciplinary R. Prof’l Conduct 1.05 (a). A lawyer may not publicly reveal confidential information of a former client unless expressly permitted by an exception found in Rule 1.05.
Although exceptions to Rule 1.05 permit a lawyer to reveal confidential information when necessary to defend against a claim of misconduct, or in order to establish a claim or defense in a controversy with a client, the Professional Ethics Committee has determined that such exceptions apply only in connection with formal proceedings. Tex. Comm. on Prof’l Ethics, Op. 662 (2016). “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.” Id.
Lawyers frequently believe they can avoid running afoul of the confidentiality rule by simply not revealing privileged conversations or by not delving too deeply into the facts. But it is not that simple. Any information about the client or case that came to the attention of the lawyer by reason of the representation is off limits. “Even a general disclaimer that the events are not accurately portrayed may reveal that the lawyer was involved in the events mentioned, which could disclose confidential client information.” ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 496 (2021).
As difficult as it may be, lawyers should seriously consider not responding at all to negative online reviews. As a practical matter, any response will likely engender additional responses from the former client, and the more activity a particular post receives, the higher the post may appear in online search results. Not responding at all could actually be beneficial in terms of not drawing attention to the post.
If you feel you must respond in some way, consider simply requesting the poster to take the conversation offline and to call you to discuss their concerns. If they do call, however, be prepared to try to work things out lest you receive a second negative review from the same client! It is also permissible to say, “Professional obligations do not permit me to respond as I would wish.” Id. Anything beyond this limited response, however, and you are wading into dangerous territory.
In the end, it will serve you better to focus on generating more positive online reviews rather than fretting over one negative review. It is ethically permissible to ask clients and former clients to post favorable reviews, as long as the review is truthful, factually supported, and nothing of value is provided in exchange for the review. With enough positive online reviews, over time, one negative review will lose credibility and may eventually vanish into the ether altogether…