John G. Browning 2014-07-01 02:51:47
A new ethical trap for lawyers. And I don’t give a damn ’bout my bad reputation. Oh no, not me.1 With all due respect to Joan Jett and the Blackhearts, lawyers have to care about their online reputations more than ever. Gone are the “good old days” when dealing with an unhappy client meant fielding a few angry phone calls or responding to a curt letter informing you that your services were no longer needed. In today’s digital age, where everyone is just a few clicks away from the opportunity to air grievances to the world, comments posted on lawyer rating sites like avvo.com and lawyerratingz.com or consumer complaint sites like yelp.com and ripoffreport.com can live online forever and pop up in response to Internet searches for your name. Moreover, the Web has become increasingly important in terms of generating referrals for legal services. According to a 2014 survey by findlaw.com and Thomson Reuters Corp., the Internet is now the most popular resource for people in need of legal representation. Thirty-eight percent of respondents indicated they would first use the Internet to find and research a lawyer, while 29 percent would ask a friend or relative first, 10 percent would rely on a local bar association, and only 4 percent would use the Yellow Pages.2 And research by the marketing firm Hinge shows that more people view a firm’s website or conduct an online search (81 percent and 63.2 percent, respectively) to find and evaluate a lawyer than those who ask friends and colleagues or talk to references.3 So what can a lawyer do when his or her professional reputation is attacked online by a client or former client? As with any criticism, there’s a right way and a wrong way to respond—and the wrong way can land you in front of the disciplinary board. Chicago employment attorney Betty Tsamis learned this lesson the hard way in January 2014, when she received a reprimand from the Illinois Attorney Registration and Disciplinary Commission for revealing confidential client information in a public forum.4 Tsamis had represented former American Airlines flight attendant Richard Rinehart in an unsuccessful quest for unemployment benefits (Rinehart had been terminated for allegedly assaulting a fellow flight attendant). After firing Tsamis, Rinehart posted a review of her on avvo.com. In the post, Rinehart expressed his dissatisfaction bluntly, claiming that Tsamis “only wants your money,” that her assurances of being on a client’s side are “a huge lie,” and that she took his money despite “knowing full well a certain law in Illinois would not let me collect unemployment.” 5 Within days of this posting, Tsamis contacted Rinehart by email, requesting that he remove it; Rinehart refused to do so unless he received a copy of his file and a full refund of the $1,500 he had paid. Sometime in the next two months, Avvo removed Rinehart’s posting. But Rinehart posted a second negative review of Tsamis on the site. This time, Tsamis reacted by posting a reply the next day. In it, she called Rinehart’s allegations “simply false,” said he didn’t reveal all the facts of his situation during their client meetings, and stated, “I feel badly for him, but his own actions in beating up a female coworker are what caused the consequences he is now so upset about.”6 According to the Illinois disciplinary authorities, it was this online revelation of client information by Tsamis that violated the Rules of Professional Conduct, as well as the fact that her posting was “designed to intimidate and embarrass Rinehart and to keep him from posting additional information about her on the Avvo website,” which constituted another violation of professional conduct rules as well as conduct that tends to “bring the courts or the legal profession into disrepute.”7 In a similar situation in Georgia, attorney Margrett Skinner’s petition for a lesser sanction of voluntary discipline was rejected by that state’s disciplinary authorities. According to In re Skinner, after being fired and replaced by new counsel, the lawyer responded to negative reviews “on consumer websites” by the former client by posting “personal and confidential information about the client that Ms. Skinner had gained in her professional relationship with the client.”8 The court didn’t go into detail about the exact comments posted, however, and specifically noted that the record didn’t reflect “actual or potential harm to the client as a result of the disclosures.”9 And in an unpublished 2013 California opinion, Gwire v. Bloomberg, a disgruntled former client anonymously posted comments about lawyer William Gwire on complaintsboard.com, accusing Gwire of committing “a horrific fraud” and including a “partial summary of Gwire’s incredibly unethical history.”10 Gwire responded with a post calling the client “unreliable,” “a proven liar,” and “mentally unbalanced,” and made references to his divorce file and previous business failures.11 When Gwire then sued the client for defamation and trade libel, the former client tried to have the lawsuit dismissed under California’s Anti-SLAPP statute. The trial court allowed the defamation claims to go forward (which was affirmed by the appellate court), and the appropriateness of Gwire’s response to the online remarks wasn’t raised as an issue on appeal.12 Occasionally, a defamation suit might prove successful. In a recent Georgia decision, Pampattiwar v. Hinson et al., the appellate court upheld a $405,000 trial verdict in favor of divorce lawyer Jan V. Hinson, who sued her former client Vivek A. Pampattiwar over negative reviews he allegedly posted online.13 Hinson represented Pampattiwar in a divorce proceeding until a series of disagreements ensued over the representation and billing and she stopped representing him. Approximately six weeks later, Hinson Googled herself and found a sharply negative review that Pampattiwar had posted on a professional services review site, kudzu.com. Among other comments, he allegedly described Hinson as “a CROOK lawyer” and an “Extremely Fraudulent Lady” who “inflates her bills by 10 times” and had “duped 12 people i[n] the last couple of years.”14 Although the comments were posted under the screen name “STAREA,” an investigation would reveal that STAREA’s IP address matched the IP address used by Pampattiwar to send several emails to Hinson.15 Hinson sued for fraud, breach of contract over the unpaid legal bills, and libel per se, and she added a count for invasion of privacy and false light after a second pseudonymous review was posted on kudzu.com, accusing Hinson of using her office staffto post “bogus” reviews.16 The appellate court rejected Pampattiwar’s argument that Hinson had shown no actual damages from the defamatory postings, finding that applicable Georgia tort law allows recovery for “wounded feelings,” a form of personal injury to reputation. Besides the ethical risk of revealing confidential client information when responding to a negative online review, there is another equally disturbing way for an attorney to get in trouble over reviews on websites: by posting false testimonials, both negative and positive. In 2013, an attorney was publicly reprimanded by the Minnesota Supreme Court for “falsely posing as a former client of opposing counsel and posting a negative review on a website.” In Dallas, a pending lawsuit brought by one law firm has accused a rival firm of a campaign of false postings while posing as unhappy ex-clients. And in August 2013, Yelp took the extreme step of suing the McMillan Law Group, a San Diego bankruptcy firm, for allegedly “gaming the system” through the “planting of fake reviews intended to sway potential clients with false testimonials.”17 With the Internet assuming an ever-increasing marketing importance for lawyers, legal analysts are starting to pay more attention to a lawyer’s options and risks in addressing online reviews.18 Others have pointed to cautionary examples from the medical profession, in which physicians’ attempts to restrict patients from posting online reviews through the use of nondisclosure agreements have led to litigation, bad publicity, and accusations of everything from censorship to unconsionability to violations of medical ethics guidelines.19 But surprisingly little guidance on the issue has come from bar ethics authorities around the country. To date, only two ethics opinions—both from California—have been issued that deal squarely with the question of whether an attorney may respond to a client’s negative online review. In December 2012, the Los Angeles County Bar Association issued Formal Opinion No. 525, which dealt with the Ethical Duties of Lawyers in Connection with Adverse Comments Published by a Former Client.20 In the scenario discussed in this opinion, the adverse comments posted by the client did not disclose any confidential information, nor was there any pending litigation or arbitration between the lawyer and the former client. (If there had been, socalled “self-defense” exceptions to discussing a client’s confidential information, analogous to those in legal malpractice or grievance context, might apply.) The LA Bar Association committee concluded that an attorney may publicly respond as long as he or she does not disclose any confidential information, does not injure the client with respect to the subject of the prior representation, and is “proportionate and restrained.”21 In January 2014, the Bar Association of San Francisco weighed in on this subject as well.22 Like its Los Angeles counterpart, it addressed a scenario with “a free public online forum that rates attorneys,” in which the negative review by the ex-client did not disclose any confidential information.23 And like its fellow association, the San Francisco Bar reasoned that while an attorney “is not ethically barred from responding generally” to such an online review, the ongoing duty of confidentiality would prohibit the lawyer from disclosing any confidential information. In addition, it concluded, if the matter previously handled for the client was not over, “it may be inappropriate under the circumstances for [the] attorney to provide any substantive response in the online forum, even one that does not disclose confidential information.”24 So just what is the best approach for dealing with negative online reviews, where posting a rebuttal that’s too specific may result in a trip to the disciplinary board and a defamation suit is chancy at best? Lawyer-coach Debra Bruce of Houston recommends refraining from lashing out. Instead, she says, ask happy clients to post their own positive reviews, and consider “addressing the comment with a gracious apology or regret for their dissatisfaction, appreciation for the feedback, and an invitation to address the matter with the complainant personally.”25 This advice is echoed by Josh King, general counsel to Avvo, who calls negative commentary “a golden marketing opportunity.”26 King says: By posting a professional, meaningful response to negative commentary, an attorney sends a powerful message to any readers of that review. Done correctly, such a message communicates responsiveness, attention to feedback, and strength of character. The trick is to not act defensive, petty, or feel the need to directly refute what you perceive is wrong with the review.27 This is sound advice. After all, when responding online to a negative posting, you’re not just responding to one former client but to a reading audience of many potential clients. NOTES 1. Bad Reputation, Joan Jett and the Blackhearts. 2. The Internet is Now the Most Popular Way to Find and Research a Lawyer, Says FindLaw Survey, Press Release, Apr. 17, 2014, http://thomsonreuters.com/pressreleases/042014/internet_lawyer_search_survey. 3. Sherry Karabin, Marketing Legal Services in a Brave New Internet World, Law Technology News (Mar. 31, 2014), http://www.lawtechnologynews.com/id=1396262346123/Marketing-Legal-Services-in-a-Brave-New-Internet-World. 4. In the Matter of Tsamis, Commission No. 2013PR00095, available at http://www.iardc.org/13PR0095CM.html. 5. Id. 6. Id. 7. Id. 8. In re Skinner, 740 S.E. 2d 171 (Ga. 2013). 9. Id. 10. Gwire v. Bloomberg, 2013 WL 5493399 (Cal. Ct. App. 2013) (unpublished opinion). 11. Id. 12. Id. 13. Pampattiwar v. Hinson et al., 2014 WL 943230 (Ct. App. Ga., Mar. 12, 2014). 14. Id. 15. Id. 16. Id. 17. Yelp, Inc. v. McMillan Law Group, Inc., Case No. CGC-13-533654 (Sup. Ct. Cal., Cnty. San Fran., filed Aug. 20, 2013). 18. See, e.g., Debra L. Bruce, How Lawyers Can Handle Bad Reviews and Complaints on Social Media, 75 Tex. B.J. 402, 403 (May 2012); Josh King, Your Business: Someone Online Hates You, The Recorder, Aug. 16, 2013; Laurel Rigertas, How Do You Rate Your Lawyer? Lawyers’ Responses to Online Reviews of Their Services, 4 St. Mary’s J. Legal Mal. & Ethics (2014). 19. See, e.g., Sean D. Lee, “I Hate My Doctor”: Reputation, Defamation, and Physician- Review Websites, 23 Health Matrix: J. Law-Medicine (Fall 2013). 20. LA Cnty. Bar Assoc. Professional Responsibility and Ethics Comm., Formal Opinion No. 525 (Feb. 2013). 21. Id. 22. Bar Assoc. San Fran. Ethics Opinion 2014-1 (Jan. 2014), http://www.sfbar.org/ethics/opinion_2014-1.aspx. 23. Id. 24. Id. 25. Bruce, supra note 18, at 403. 26. King, supra note 18. 27. Id. JOHN G. BROWNING is the administrative partner of Lewis Brisbois Bisgaard & Smith in Dallas, where he handles civil litigation in state and federal courts in areas ranging from employment and intellectual property to commercial cases and defense of products liability, professional liability, media law, and general negligence matters. He also serves as an adjunct professor at Southern Methodist University Dedman School of Law, where he teaches the course “Social Media and the Law.”
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