Ethics Corner Article
New Hampshire Bar News – February 19, 2014
Dear Ethics Committee: Every two weeks, my administrative assistant searches my name online. Yesterday, she discovered a troubling post on the lawyer review site, Avvo. A client I represented at an administrative hearing posted a scathing review. The client wrote that: “I took her money ($2,500) for a hearing that I knew I could not win.” This is simply not true. In fact, the client lied to me when we met.
Based on her statements and the tight time limit, I filed the appeal. After reviewing the file, I concluded that she had virtually no chance of winning the appeal and informed her of my opinion. She requested that I go forward anyway. I did not put on certain testimony that was not accurate, but still made the best case I could. Not surprisingly, we lost. I refused her demand that I return the fee, told her that I had done an effective job at the hearing in light of the facts, and pointed out that I had put in many more hours than I billed.
I want to post a reply with the facts above, but my partner says this might violate my duty of confidentiality. I can’t believe that he is correct, but told him I would contact the Ethics Committee to find out. I recall from law school that I have a right to defend myself. Please advise.
Given the increasing importance of online rating services to prospective clients, this is a timely question. However, the Committee urges extreme caution should you decide to respond. For example, earlier this year, Illinois disciplinary counsel filed a complaint claiming that a lawyer’s response to a negative website posting violated Illinois’ version of Rule 1.9(c)(2) by disclosing confidential information without meeting one of the exceptions in Rule 1.6. The Illinois lawyer asserted that his conduct was authorized by the self-defense exception of Rule 1.6.
New Hampshire Rule of Professional Conduct 1.6(b)(3) provides that a lawyer may reveal confidential information to the extent that he or she reasonably believes necessary “to respond to allegations in any proceeding concerning the lawyer’s representation of the client.” The New Hampshire Rule and your questions raise two significant issues. First, there is a difference of opinion over whether there must be a pending or foreseeable formal “proceeding” before a lawyer may reveal confidential information to defend against public allegations made by a client, such as those posted on the lawyer rating website. Many leading legal ethicists read Rule 1.6 strictly in light of the importance of client confidentiality and suggest that a proceeding must have been commenced or foreseeable before confidences may be disclosed. See www.legalethicsforum.com (last visited Sept. 23, 2013).
The ABA has also issued an opinion, in the context of ineffective assistance of counsel, which strictly limits permitted defensive disclosures by the lawyer to those that are made in a judicial proceeding. ABA Formal Opinion 10-456 (July 14, 2010).
In Louima v. City of New York, 2004 US Dist. LEXIS 13707 (2004) (which was decided under rules that were based on the prior Code of Professional Responsibility and not the Model Rules), the court stated, “mere press reports regarding an attorney’s conduct do not justify disclosure of a client’s confidences and secrets, even if the reports are false and the accusations unfounded.”
On the other hand, Section 64(e) of the Restatement (Third) of the Law Governing Lawyers takes the opposite position and states that “[w]hen a client has made a public charge of wrongdoing, a lawyer is warranted in making a proportionate and restrained public response.”
Arizona Ethics Op. 93-02 (1993) agreed that a client established a controversy with a lawyer, sufficient to trigger the self-defense exception, by telling an author writing a book about the client’s murder conviction that counsel was incompetent and conspired with prosecution. In addition, the ABA Comment  to Model Rule 1.6 states that a lawyer may respond “to the extent the lawyer reasonably believes necessary to establish a defense” to a “legal claim or charge” that “alleges complicity of the lawyer in a client’s conduct or other misconduct of the lawyer” and that the “lawyer’s right to respond arises when an assertion of such complicity has been made. Paragraph (b)(5)[New Hampshire’s section (b)(3)] does not require the lawyer to await the commencement of an action or proceeding that charges such complicity, so that the defense may be established by responding directly to a third party who has made such an assertion.”
We have no guidance as to how our New Hampshire Supreme Court would interpret the scope of the actions or proceedings that are necessary to justify a lawyer’s disclosure of confidential information in self-defense. Regardless of how one resolves that issue, however, there is a second issue that you must address.
Rule 1.6 only allows disclosure of confidential information that is necessary to such a defense. Disclosure of much of the information that you suggest, while effective in rebutting the allegations, is not absolutely necessary. The response of Avvo’s General Counsel to the question of how far an attorney is authorized to go to defend herself is helpful. He wrote: “As I often tell attorneys, there are very effective ways to respond to negative reviews that don’t involve saying anything about the case and risking disclosure of client confidences. It’s less important to ‘set the record straight’ than it is to communicate that the lawyer is responsive, professional and takes client feedback seriously.” www.legalethicsforum.com (last visited Sept. 23, 2013). In light of the uncertainty over whether there must be a formal proceeding before a lawyer may disclose confidential information in self-defense, this advice seems particularly insightful.
One possibility to address what you feel is an injustice would be to file an action for defamation against your client. This would bring the matter clearly within the exception to the Model Rules. However, the standards of proof, cost, and other concerns may make this an unrealistic option.
The Committee notes that, while your inquiry relates to a web posting, the analysis in this response applies equally to other forms of public communication, such as newspapers, books, or oral comments. The Committee also observes that the issues raised by your inquiry would not be avoided by replying to your client’s allegations anonymously.
In light of the above, the Committee believes that, while you may be permitted to make some sort of limited response to your client’s postings, you are not authorized to make the disclosures that you propose. We urge you to consider the advice offered by Avvo’s counsel prior to making any responsive disclosures.
The Ethics Committee provides general guidance on the NH Rules of Professional Conduct with regard to a lawyer’s own prospective conduct. New Hampshire lawyers may contact the Ethics Committee for confidential and informal guidance by emailing the Ethics Committee Staff Liaison. Brief ethics commentaries based upon member inquiries and suggestions will be published monthly in the NH Bar News.