Question
One of my former clients posted some negative comments about me on her Facebook page. Can I respond to that posting?
Answer
This is an area that has become a concern for lawyers with far more frequency as individuals become accustomed to regularly posting information about their personal lives or activities. It is not uncommon for individuals to post information about their contact with and representation by an attorney as they recount their experiences. However, the lawyer’s ability to respond to such comments, negative or positive, is subject to a great deal of controversy and is an unsettled area of professional responsibility.
One would think that the lawyer could respond to the negative comments because the individual has brought up the subject and made it a topic of discussion in a public forum. But the requirements of SCR 20:1.6 (the confidentiality rule) govern this situation, and under this rule, a lawyer may not disclose information about the representation of a client unless the disclosure is impliedly authorized or the client gives informed consent to the disclosure of the information. In this case, neither of those exceptions apply to allow the lawyer to respond to the negative comments.
One provision of the rule, SCR 20:1.6(c)(4), does allow a lawyer to disclose confidential information when responding to a claim by a client. This provision generally applies when a client files a complaint with the Office of Lawyer Regulation or files a legal malpractice action against the attorney. Ethics opinions have concluded that responding to a social media posting does not fall under this exception because the posting does not constitute a claim or a proceeding involving a dispute between the lawyer and the client. As a result, lawyers have been disciplined for responding to social media postings and disclosing attorney-client confidential information.
A recent ethics opinion from the New York State Bar Association (NYSBA Ethics Opinion 1032 (Oct. 30, 2104)) concluded that the lawyer could not respond to a former client’s negative posting:
“The inquiry raises the question whether a lawyer may rely on this exception to disclose a former client’s confidential information in response to a negative web posting, even though there is no actual or threatened proceeding against the lawyer. We do not believe that a lawyer may do so.
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“The language of the exception suggests that it does not apply to informal complaints such as this website posting. The key word is ‘accusation,’ which has been defined as ‘[a] formal charge against a person, to the effect that he is guilty of a punishable offense,’ Black’s Law Dictionary 21 (5th ed. 1979), or a ‘charge of wrongdoing, delinquency, or fault,’ Webster’s Third International Dictionary Unabridged 22 (2002). See Roy D. Simon, Simon’s New York Rules of Professional Conduct Annotated 230 (2013 ed.) (‘An accusation means something more than just casual venting.’)”
Any type of response by the lawyer would result in potential risk of a complaint by the client for violating the attorney-client confidentiality rule. It has been suggested that the lawyer could simply make a post indicating that the client has not accurately described all the facts relating to the attorney-client relationship. It is likely that a response of this nature would not be subject to challenge as a disclosure of attorney-client information.
Lawyers must be careful when considering a response to any type of social media posting by a client. Usually it is best to leave unsaid the potential rejoinder.
