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ABA Ethics Committee Issues Guidance for Online Reviews

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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.

Can You Take Work Product With You When You Change Firms?

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With an increasing number of lawyers (especially partners) changing firms, procedures relating to such moves have become more standardized. Most notably, the use of a Lateral Partner Questionnaire (LPQ) is now commonplace, particularly among larger law firms. The LPQ helps lawyers and the firms to which they might be moving address key financial issues and identify potential client conflicts.

One issue that remains a bit murky is the degree to which a departing lawyer may take work product with them. The lack of clarity is an outgrowth of the conflicting authorities that have addressed the duty of an attorney to turn over work product more generally.

When deciding what to do with work product, it is important for the departing lawyer and the firm to be aware of the essential governing principles. As we previously wrote about, the American Bar Association’s Standing Committee on Ethics and Professional Responsibility released an opinion in December of 2019 on the responsibilities law firms and lawyers have to clients when an attorney transitions out of a firm. The ABA ‘s opinion emphasizes that the law firm and the departing lawyer have a duty to cooperate with each other during the transition period after a lawyer announces their intent to leave but before they have actually left.

A second principle is that the client owns the client file. What constitutes the client file is, however, not entirely clear. Rule 1.16(e)(1) of the California Rules of Professional Conduct (formerly Rule 3-700(D)) identifies what needs to be returned to a client, specifically including “pleadings, deposition transcripts, exhibits, and physical evidence,” as well as “other items reasonably necessary to the client’s representation.”

Whether the “reasonably necessary” documents include attorney work product has been the subject of ongoing disagreement. Some bar associations’ ethics committees have determined that work product paid for by the client should be part of the file and must therefore be turned over, while other bar associations have reached the opposite conclusion.

So what is a departing lawyer supposed to do?

As with many areas of practice, the best approach lies at the intersection of good communication skills and sound judgment. To the extent that the departing lawyer is worried the firm won’t turn over key work product in an ongoing matter, they are probably better off not taking the work product and instead having the client ask for it in writing. That puts the firm in the difficult situation of having to potentially go to court to explain why the client shouldn’t get the work product in question. That is generally a stronger position for the departing lawyer than simply taking the work product.

Likewise, if the departing lawyer created the work product in question and the matter is now dormant or otherwise uncontroversial, the firm is less likely to object to the lawyer making a copy of the work product as long as they notify the firm that they intend to do so. If the firm takes the position that departing lawyers may not take any work product they created, it might be helpful for the departing lawyers to forward the December 2019 ABA ethics opinion to the firm.

Although the law in regards to the handling of attorney work product could be clearer, the fortunate reality is that this ambiguity need not derail or become a significant issue in a vast majority of attorney departures.