With social media, good and bad publicity can spread worldwide within minutes. Every business wants positive feedback concerning its customer service—and law firms are no exception. Bad reviews are viewed like the plague. While marketing experts have ways to turn every lemon into lemonade, this post addresses what lawyers can do, ethically, to deal with a bad review on social media.
In Los Angeles County Bar Association Opinion No. 525, issued on December 6, 2012, the issue was whether a lawyer could respond to a former client who posted a derogatory message about the attorney on the internet. The opinion concludes that the attorney can respond to the posting so long as the response:
- does not disclose confidential information;
- will not injure the former client in a matter involving the former representation; and
- is proportionate and restrained.
The Bar Association of San Francisco, in Opinion No. 2014-1 reached a similar conclusion:
Attorney is not barred from responding generally to an online review by a former client where the former client’s matter has concluded. Although the residual duty of loyalty owed to the former client does not prohibit a response, Attorney’s on-going duty of confidentiality prohibits Attorney from disclosing any confidential information about the prior representation absent the former client’s informed consent or a waiver of confidentiality. California’s statutory self-defense exception, as interpreted by California case law, has been limited in application to claims by a client (against or about an attorney), or by an attorney against a client, in the context of a formal or imminent legal proceeding. Even in those circumstances where disclosure of otherwise confidential information is permitted, the disclosure must be narrowly tailored to the issues raised by the former client. If the matter previously handled for the former client has not concluded, it may be inappropriate under the circumstances for Attorney to provide any substantive response in the online forum, even one that does not disclose confidential information.
While being a potentially risky strategy—especially with the application of the Texas Citizens Participation Act—lawyers may sue for defamation. An Austin law firm, Grissom & Thompson, won a default judgment against a client for failing to pay attorney’s fees. Shortly thereafter, the client wrote on a Yelp review:
They will take everything you’ve got. They will not defend you. They will hurt you. That is their motive. That is their intent.
The firm filed a lawsuit for libel and received a damages award of $100,000 after a summary-judgment ruling. The court also ordered that the client remove the review.
In Kinney v. Barnes, 443 S.W.3d 87 (Tex. 2014), the Supreme Court of Texas held that a permanent injunction requiring the removal of posted speech that has been adjudicated defamatory is not a prior restraint on free speech. But prohibiting future speech based on that adjudication impermissibly threatens to sweep protected speech into its prohibition and thus is an unconstitutional infringement upon the right to free speech. Id. at 101.
In Hassell v. Bird, a California trial court awarded an attorney $550,000 in damages and injunctive relief against a former client who gave the attorney one out of five stars in a Yelp review and said the firm deserved less. Even though Yelp was not a party to the lawsuit between the lawyer and the former client, the trial court required Yelp to remove the review. On appeal, the California Supreme Court held that Yelp could not be ordered to remove libelous or offensive conduct under the Communications Decency Act. That Act says internet service providers cannot be held liable for the content of material posted by others on their websites. Those who post libelous material can still be sued. The United States Supreme Court denied review in this case on January 22, 2019, so the law seems clear that the person who posts libelous material can be sued—but you can’t require the internet service provider to remove defamatory material.
While litigating—and even merely confronting former clients—can be dangerous, lawyers have options. Texas law afford the potential remedy of forcing the poster of a defamatory posting to remove it. But the internet service provider cannot be forced to do so. In accordance with the ethics opinions from Los Angeles and San Francisco, lawyers may respond to negative postings so long as they do not reveal confidential information, injure the client in a matter involving the prior representation, and respond proportionately and with restraint. From a practical standpoint, these exceptions pose a significant challenge to lawyers to respond to negative posts in a persuasive way while also maintaining ethical standards.