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