ABA Ethics Committee Issues Guidance for Online Reviews

On January 13, the American Bar Association’s Standing Committee on Ethics and Professional Responsibility issued guidance for responding (or refraining from responding) to negative online comments and reviews. The core of the issue is the matter of confidentiality, with the Committee making clear that lawyers may not disclose any information that “could reasonably lead to the discovery of confidential information by others.”

While a lawyer might be understandably tempted to clear up misinformation posted online about their own practice, there is not much room for defending oneself when it comes to specific accusations that would require the attorney to detail, at some level, elements of a client matter. The Committee concluded that an informal online comment would not qualify as the type of “controversy” between a lawyer and client that allows for disclosure of information related to the representation without the client’s informed consent. Instead, according to Formal Opinion 496, a lawyer can reply inviting the client to contact them directly or explaining that “professional considerations preclude a response.” Another alternative proposed by the Committee is to request that the negative post be removed by the platform where it is hosted (such as Google).

The Opinion includes a summary of what it describes as best practices. Specifically, the Committee notes that no disclosures may occur in the process of making a takedown request. An attorney may communicate to the web host that the comment is inaccurate or that they have not actually represented the person posting, as applicable, but they may not reveal any confidential information.

The Opinion generally recommends that lawyers not respond to negative online reviews so as not to draw further attention to a negative comment. The Opinion offers additional suggestions for scenarios involving opposing counsel or an opposing party posting defamatory comments, while noting that a person who has never been a client might warrant a simple reply that they were never represented by the lawyer in question. Having no relation to the lawyer, these commenters would not necessitate the same concerns over attorney-client privilege.

As consultants to lawyers and law firms, it is hard to ignore that this Opinion has an academic, theoretical air to it. It provides essentially no help to law firms dealing with clients or former clients who are defaming or otherwise lying about them.

The Wrong Way to Raise Rates

As the new year begins, you may be looking to increase fees for your legal services. All too often, lawyers who charge by the hour include the higher rates in an invoice at the beginning of February with no prior warning. Whether this strictly complies with the requirement to notify clients of material changes could be debated, but using this practice across the board is bad client relations regardless.

Your approach to raising rates for your existing clients should be individualized. If you have long-standing clients for whom you’ve raised rates in this way year after year with no complaints, you are probably on safe ground to continue doing so. But this should not be your default or automatic procedure. As consultants and business development coaches, we have seen the aftermath of this mistake too many times to count.

The following are a few recurring patterns to avoid. Most commonly, raising rates on already dissatisfied clients is risky at best and foolhardy at worst. If, for instance, you recently got a poor outcome in some aspect of a case or you haven’t adequately delivered on certain parts of a project, this is probably not a great time to charge more, especially without separate, explicit notice and consent from the client.

Second, if the work you do for an existing client is essentially unchanged from December to January, you are in danger of losing that client and future referrals by heightening fees without explanation. A classic example is the increasing of hourly rates for depositions, an especially unwelcome way to wish clients a happy New Year. The harder it is to differentiate the value of the work done before and after the new year, the more hesitant a firm should be to automatically raise rates effective January 1st.

In another familiar misstep, firms at times raise rates before having demonstrated any significant accomplishments for the client. When clients can’t point to tangible and positive differences made by the law firm, a fee increase is likely to engender some resentment.

Please don’t assume your client will immediately voice their displeasure at ill-timed and unexplained fee increases. This type of move can cause a fray in the relationship that becomes apparent down the line through passive aggressive behaviors and reluctance to pay future bills.