Ethical Considerations When Immigration Client Reviews Go Awry

In August 2013, one Illinois employment lawyer learned the hard way how NOT to respond online to a bad client review.  The attorney had received a bad review by a former client on an online review site.  She had requested removal of the bad review, which the website complied.  When the same former client re-posted the bad review, the attorney then posted the following response:

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 unless the employer chose not to contest the unemployment (employers sometimes do is [sic]). Despite knowing that he would likely lose, he chose to go forward with a hearing to try to obtain benefits. I dislike it very much when my clients lose but I cannot invent positive facts for clients when they are not there. 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.”  (Emphasis added.)

The attorney should probably have stopped at “This is simply false.”  However, hindsight is 20/20!  The Illinois Attorney Registration and Disciplinary Commission filed a complaint against the employment attorney alleging violation of client confidentiality, amongst other issues.  The American Bar Association (ABA) Journal actually provides an entertaining take on this particular case.

While most attorneys would demonstrate more restraint when it comes to responding to bad online reviews, how much, exactly, can an attorney divulge on a public online site to defend his/her reputation?  According to the ABA Model Rules of Professional Conduct, Rule 4.4 provides some guidance:

 

 

Rule 4.4: Respect for Rights of Third Persons

(Transactions with Persons Other Than Clients Rule)

  1. In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.

Attorneys must also be conscientious of Rule 1.6, to protect a client’s confidences unless in certain instances:

(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:

(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client;

The question arising out of Rule 1.6(b)(5) is whether a “defense” on behalf of a lawyer extends to a rebuttal online on a public website?  The Illinois employment attorney is fighting the complaint charges against her and will have an opportunity to argue her defense before the disciplinary board.  (She is represented by counsel.)  We’ll find out how the Illinois Commission will render its decision.

In the meantime, how can an attorney ward off bad reviews online, especially ones that are clearly false and unwarranted?  The Los Angeles County Bar Association (LACBA) released an interesting Opinion No. 525 in December 2012 regarding this very issue.  To summarize, the attorney may respond to adverse public comments:

  1. Attorney’s response does not disclose confidential information;
  2. Attorney does not respond in a manner that will injure Former Client in a matter involving the former representation; and
  3. Attorney’s response is proportionate and restrained.

California does not adopt the ABA Model Rule’s “Self-Defense” exception.  (See LACBA Opinion No. 519.)

From a practical perspective, attorneys can still respond, without divulging confidential information, especially when bad reviews focus on operational issues such as:

  • Unresponsive staff (via email or phone)
  • Long wait times to meet with attorneys
  • No parking validation
  • Difficulty scheduling a meeting
  • Being on hold too long

In those circumstances, attorneys who choose to respond can acknowledge the reviewer’s frustrations, thank them for their frankness, and let them know that the advice has been taken into consideration.

For substantively bad reviews that attack the attorney’s character or legal skills, attorneys who opt to engage in a response should tread lightly.  On the “front end (what the public sees on the website), you can respond “generally” but need not confirm that the reviewer was a client.  On the back end, you can contact the client (or former client) directly to obtain written consent to respond to the review in more details. In the alternative, you can simply kill the review with kindness, as one attorney writes:

Apologize for the client’s dissatisfaction. Offer to discuss the matter directly. Do not discuss any details or characteristics of the client’s case.

Even if you don’t mean it, at least the appearance of caring and professionalism helps. On the other hand, defending yourself without specifics makes you look like you have something to hide.

The best response to a substantively specious or bad review is to encourage your clients who are happy with your work to leave reviews on that website to offset the bad review(s).  There’s nothing like a plethora of good reviews to make the bad review(s) look like disgruntled Debbie Downers!

Do you have other tips on offsetting the effects of bad reviews?  Feel free to leave them in our comments.