Category Archives: Confidences and negative online client review

New Jersey lawyer suspended for, inter alia, revealing confidential information in review of former client’s business

Hello everyone and welcome to this Ethics Alert, which will discuss recent New Jersey Supreme Court opinion which imposed a one year suspension on a lawyer for, inter alia, providing a negative public review of a client’s business on Yelp and disclosing confidential information in the review.  The case is: In the Matter of Brian LeBon Calpin (New Jersey Supreme Court No. D-67 083821).  The May 7, 2020 opinion is here:  http://drblookupportal.judiciary.state.nj.us/DocumentHandler.ashx?document_id=1129260

The NJ SC opinion essentially adopts the NJ Disciplinary Review Board Decision which found that the lawyer posted a negative public review of the client’s massage business on June 24, 2018 on the Yelp website after the client had posted public negative online reviews of his legal services.  The lawyer had ceased representing the client in “early summer 2017”.  The DRB Decision is here:  http://drblookupportal.judiciary.state.nj.us/DocumentHandler.ashx?document_id=1124239

According to the Decision, the lawyer’s review of the former client’s massage business on Yelp stated:

“Well, Angee is a convicted felon for fleeing the state with children. A wonderful parent. Additionally, she has been convicted of shoplifting from a supermarket. Hide your wallets well during a massage. Oops, almost forgot about the DWI conviction. Well, maybe a couple of beers during the massage would be nice.”

The Decision further states that, in his response to the ethics complaint, lawyer stated:

“As to the Yelp rating about (the former client’s) massage therapy business, I admit to same. I was very upset by [her] Yelp rating of my practice. This rating was made more than a year and a half after the conclusion of my representation. My disclosures, i.e. her arrests, were public information and I did not violate attorney client privilege. My position was that what was good for the goose was good for the gander. I do concede that I do not believe that the rating was my finest moment. However, it was not unethical. That posting has subsequently been taken down.”

The Decision found that, although the information posted by the lawyer may have been publicly available, the information was not generally known; therefore, the “generally known” exception in the New Jersey Bar rules regarding client confidentiality did not apply.  The decision also quoted ABA Formal Opinion 479 (December 15, 2017):  “[T]he phrase ‘generally known’ means much more than publicly available or accessible. It means that the information has already received widespread publicity.”

The Decision also found that the lawyer’s conduct in three other client matters violated ethics rules related to neglect, diligence, failure to keep clients informed, failure to deliver client funds or property, and failure to return client property after representation. The lawyer also told to a Bar investigator that he had sent a refund check to a former client, which was a misrepresentation.

The lawyer had prior discipline for “similar ethics infractions, evidencing his failure to learn from past mistakes: a June 19, 2014 reprimand for gross neglect, lack of diligence, and failure to communicate with a client, and a January 24, 2017 admonition for lack of diligence in a client matter.”

Bottom line:  This is another unfortunate example of a lawyer reacting badly to a client’s negative online review and including confidential (and not generally known) information in responding to a negative client review.  As I have said and written many times, lawyers are not permitted to include client confidential information in responding to negative online reviews that are in the public domain.

Stay safe and healthy and be careful out there.

Disclaimer:  this Ethics Alert is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2999 Alt. 19, Suite A

Palm Harbor, Florida

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

Joseph Corsmeier

about.me/corsmeierethicsblogs

 

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Florida Bar Ethics Committee votes to publish proposed opinion providing guidance in responding to negative online reviews

Hello everyone and welcome to this Ethics Alert, which will discuss the recent vote by the Florida Bar’s Professional Ethics Committee (PEC) to publish a proposed ethics advisory opinion providing guidance to lawyers in responding to negative online reviews and complaint for comment.  Proposed Ethics Advisory Opinion 20-1 is here: https://www.floridabar.org/the-florida-bar-news/committee-adopts-ethics-opinion-regarding-online-reviews/

The PEC voted at its February 7, 2020 meeting to publish formal Ethics Advisory Opinion 20-1, which provides guidance to lawyers in responding to negative online reviews for comment by Florida Bar members.

The Florida Bar ethics staff previously issued Florida Bar Staff Opinion 38049 in 2018 in response to a lawyer’s inquiry.  The BOG approved the staff opinion on June 15, 2018; however, since the opinion was a reply to a single lawyer, it was not published.  I discussed  Florida Bar Staff Opinion 38049 provided a link to that opinion here: https://jcorsmeier.wordpress.com/2018/08/01/florida-bar-professional-ethics-committee-approves-staff-opinion-addressing-lawyer-responses-to-negative-online-reviews/

That staff opinion was minimally revised by the PEC and will be published online and in print in The Florida News for Bar member comments. The proposed formal advisory opinion concludes:

“Therefore, if the inquirer chooses to respond to the negative online review and the inquirer does not obtain the former client’s informed consent to reveal confidential information, the inquirer must not reveal confidential information regarding the representation, but must only respond in a general way, such as that the inquirer disagrees with the client’s statements. The inquirer should not disclose that the court entered an order allowing the inquirer to withdraw because that is information relating to the client’s representation and the client did not give informed consent for the inquirer to disclose.”

The proposed advisory opinion states that Florida Bar Rule 4-1.6(c) provides 6 exceptions permitting or mandating that a lawyer reveal confidential client information; however, none of the exceptions addresses online reviews.  The proposed opinion also refers to the comment to Florida Bar Rule 4-1.6, which states:

“A fundamental principle in the client-lawyer relationship is that, in the absence of the client’s informed consent, the lawyer must not reveal information relating to the representation….(t)he confidentiality rule applies not merely to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source.”

The proposed opinion states that the language in Texas Ethics Opinion 622 “would be an acceptable response” to negative online reviews:

“A lawyer’s duty to keep client confidences has few exceptions and in an abundance of caution I do not feel at liberty to respond in a point by point fashion in this forum. Suffice it to say that I do not believe that the post presents a fair and accurate picture of the events.”  “The (lawyer) also may state that the (lawyer) disagrees with the facts stated in the review.”

According to the Bar’s Notice, the PEC will consider any comments received at their meeting on Friday, June 19, 2020 in Orlando.

“Comments must contain the proposed advisory opinion number and clearly state the issues for the committee to consider. A written argument may be included explaining why the Florida Bar member believes the committee’s opinion is either correct or incorrect and may contain citations to relevant authorities. Comments should be submitted to Elizabeth Clark Tarbert, Ethics Counsel, The Florida Bar, 651 E. Jefferson Street, Tallahassee 32399-2300, and must be postmarked no later than March 31, 2020.”

Bottom line:  Lawyers must be aware that negative online reviews do not fall within any of the exceptions which permit or require revealing confidential client information and, absent client informed consent, lawyers are not permitted to reveal confidential information in responding to the negative review.  In our digital and social media age, perhaps a change in the Bar Rule permitting such responses would be appropriate.

I will keep you advised and be careful out there.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2999 Alt. 19, Suite A

Palm Harbor, Florida

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Joseph Corsmeier

about.me/corsmeierethicsblogs

 

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Proposed North Carolina Bar ethics opinion states that lawyers may only make “restrained” responses to negative online reviews

Hello everyone and welcome to this Ethics Alert which will discuss recent proposed North Carolina Bar 2020 Formal Ethics Opinion 1, which states that lawyers are prohibited from revealing confidential information in response to a negative online post; however, the lawyer can make a “proportional and restrained” response.  Proposed NC Bar 2020 Formal Ethics Opinion 1 is here:   https://www.ncbar.gov/for-lawyers/ethics/proposed-opinions/

At its meeting in January 2020, the North Carolina State Bar Council adopted an ethics opinion stating that lawyers may post “a proportional and restrained” response to negative online reviews by former clients, but are prohibited from disclosing confidential information.  North Carolina lawyers have until March 30, 2020 to comment on the proposed ethics opinion.

The proposed ethics opinion responds to an inquiry by a North Carolina lawyer who believed that some online comments by a former client were false. The lawyer believed he could rebut the allegations using confidential information.  The proposed ethics opinions states that lawyers are prohibited from revealing confidential information without client consent, or unless an exception applies.

The ethics opinion discusses the exception to the confidentiality rule that permit a lawyer to reveal confidential information to the extent the lawyer reasonably thinks is necessary to defend a criminal charge or civil claim based on the client’s conduct, to establish a claim or defense in a controversy between the lawyer and client, or to respond to allegations in any proceeding involving the lawyer’s representation of the client.

The opinion discusses what it calls the “self-defense” exception, which permits a lawyer to reveal confidential information to defend him or herself applies to legal claims and disciplinary charges arising in a civil, criminal, disciplinary or other proceeding and states that “(a) negative online review does not fall within these categories and, therefore, does not trigger the self-defense exception.”

Florida, Pennsylvania, Texas, and New York Ethics Opinions have made similar conclusions.  My August 2018 blog on the Florida Bar Board of Governor’s approval of Florida Bar Staff Opinion 38049, which states that a lawyer may post only a limited response to a negative online review that the lawyer said falsely accused her of theft and may not reveal attorney/client confidences is here:  https://jcorsmeier.wordpress.com/2018/08/01/florida-bar-professional-ethics-committee-approves-staff-opinion-addressing-lawyer-responses-to-negative-online-reviews/.

Bottom line:  This proposed ethics opinion is consistent with other ethics opinions which have examined this issue, including Florida. Unless the exceptions to the rule are revised in the lawyer’s jurisdiction, lawyers will continue to be prohibited from providing confidential information in rebutting allegations in online reviews by clients or former clients.

Be careful out there.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2999 Alt. 19, Suite A

Palm Harbor, Florida 34683

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

Joseph Corsmeier

about.me/corsmeierethicsblogs

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Florida Bar Professional Ethics Committee approves staff opinion addressing lawyer responses to negative online reviews

Hello everyone and welcome to this Ethics Alert which will discuss the Florida Bar’s Professional Ethics Committee’s recent approval of Florida Bar Staff Opinion 38049, which addresses lawyer responses to negative online reviews.

On June 15, 2018, the Florida Bar’s Professional Ethics Committee unanimously approved Florida Bar Staff Opinion 38049 which states that a lawyer may post a limited response to a negative online review that the lawyer says falsely accuses her of theft; however, the lawyer may not reveal attorney/client confidences.  The Staff Opinion is here:  file:///C:/Users/jcorsmeier/Downloads/PRR_Corsmeier_-_38049_KNS_responding_to_negative_online_review_PEC_approved.pdf.  The Professional Ethics Committee will not issue a separate opinion.

The lawyer stated in her inquiry that she received a negative online review and would like to respond to the former client’s negative review that the lawyer “took her money and ran” by using the language suggested in Texas Ethics Opinion 662 and adding an “objectively verifiable truthful statement” that the Court entered an order authorizing the lawyer to withdraw as counsel for the former client.

The lawyer stated that she believed the added language was “proportional and restrained, consistent with the Texas Ethics Opinion, directly addressed the allegations of the former client, and should be permissible under the Rules Regulating the Florida Bar and the First Amendment.”  The staff opinion found that the post would reveal confidential information without obtaining the former client’s consent and cited the comment to Florida Bar Rule 4-1.6.

According to the staff opinion, “(a) fundamental principle in the client-lawyer relationship is that, in the absence of the client’s informed consent, the lawyer must not reveal information relating to the representation…. The confidentiality rule applies not merely to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source.”

“The inquirer refers to Texas Ethics Opinion 622. That opinion explains that a lawyer may not respond to client’s negative internet review if the response discloses confidential information.  The opinion gives an example of a proportional and restrained response that does not reveal any confidential information:  A lawyer’s duty to keep client confidences has few exceptions and in an abundance of caution I do not feel at liberty to respond in a point by point fashion in this forum. Suffice it to say that I do not believe that the post presents a fair and accurate picture of the events.  The suggested language found in Texas Ethics Opinion 622 would be an acceptable response for the inquirer.”

“An attorney is not ethically barred from responding to an online review by a former client where the former client’s matter has concluded…(h)owever, the duty of confidentiality prevents the attorney from disclosing confidential information about the prior representation absent the client’s informed consent or waiver of confidentiality.”

In 2016, a Colorado lawyer was suspended for six months after he responded to a negative online review and revealed, among other things, that the client had bounced a check and committed unrelated felonies.  There have been other disciplinary cases where a lawyer has been sanctioned for revealing confidences in responding to a negative online review, including: In the Matter of Margrett A. Skinner, Case No. S14Y0661 (Ga. Supreme Court 5/19/14), where a Georgia lawyer received a reprimand for revealing confidences in responding to a negative online review, and In re John P. Mahoney, Bar Docket No. 2015-D141 (2015), where a lawyer received in formal admonishment in 2015.

Bottom line:  As I have blogged and advised in the past, lawyers are prohibited from revealing client confidences unless an exception to the Bar rules applies either requiring or permitting the disclosure.  Permissive exceptions include responding to a Bar complaint, defending a lawsuit filed against the lawyer, and defending against criminal charges involving the representation of a client.  A negative online review is not currently one of those exceptions.

Be careful out there.

Disclaimer:  this Ethics Alert is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

29605 U.S. Highway 19, N., Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

 

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