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ON ETHICS: Online reviews test attorneys

Nate Cade is a solo attorney who previously served on and chaired the State Bar’s Ethics Committee and served on the ABA’s Standing Ethics Committee. You can contact him at nate@cade-law.com

Nate Cade is a solo attorney who previously served on and chaired the State Bar’s Ethics Committee and served on the ABA’s Standing Ethics Committee. You can contact him at nate@cade-law.com

There is a “new normal” for attorneys.

In the good-old days, lawyers did not have email and few had faxes. Al Gore had not invented the Internet, and Ebola sounded like a new type of pasta.

No more. Today, lawyers have requirements that our forefathers could not fathom. Now, we sneak quick looks at our smartphones while at the dinner table, vacations are interrupted with conference calls, and the holidays are for getting in a few extra billables.

But it gets worse. Not only must we, as lawyers, contend with technology as it pervades our lives, but it also has empowered our clients and prospects with the power of the review.

That power used to belong only to the general counsel and captains of industry, who big-firm lawyers happily wined and dined. Those clients gave great reviews, and rather than complaining about poor service, which seemed unseemly, they merely would change their allegiance to a new firm.

And publications such as Best Lawyers and Martindale-Hubbell happily let lawyers showcase those client reviews.

Technology has changed, and perhaps leveled, the playing field. No longer is the power of the review concentrated in the hands of a few wealthy, connected clients.

Now, not only can the average client post comments about lawyers for all to see, but anyone, even those who may never have used the lawyer or law firm’s services, also can post comments. Lawyers now must deal with the online review, so they better get that Yelp sticker and put it on their office windows.

Unfortunately, not every lawyer is equipped to deal with a bad review in an online forum. Illinois attorney Betty Tsamis was disciplined for her improper response to a negative client review on avvo.com.

The client, an American Airlines flight attendant accused of performing a beat down on a fellow flight attendant, hired Tsamis to assist him with securing unemployment benefits. After a hearing, the client’s claim was denied, and the flight attendant took to Avvo to complain about Tsamis.

In the review, the client essentially claimed Tsamis wanted only to collect her fee and was not helpful. A few days later, Tsamis contacted the client and requested he remove the negative posting, which he refused to do unless she refunded the entire fee.

The client did not remove the review, but Avvo did. However, refusing to have his voice silenced, the client posted another negative review about Tsamis about two months later.

The next day, she responded to the second bad review on Avvo by posting confidential client information, such as, “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.”

Of course, the Illinois authorities were not happy to see that response and quickly grounded her.

Putting aside the perverse interest society has in obtaining lurid details about a case, what is a lawyer to do when faced with such criticism? Clearly the Rules of Professional Responsibility were not designed to deal with those facts.

Rule 20:1.6, titled Confidentiality, makes clear that a Wisconsin lawyer is allowed to reveal confidential information in certain situations, such as to prevent substantial bodily harm, to establish a claim, as defense in a controversy between the lawyer and the client, or to comply with a court order. But none of those exceptions would apply to the flight attendant situation.

Arguably, the only other possibility in the rules for a lawyer facing such harsh online criticism is to argue that posting confidential information is necessary “to respond to allegations in any proceeding concerning the lawyer’s representation of the client.” See 20:1.6(c)(4)

But it is doubtful that the Wisconsin Supreme Court would consider Avvo, Yelp or any other review site a “proceeding” to which a response is due.

While it might make sense to ask a client to remove a posting, perhaps the best thing to do is just ignore the criticism. After all, as P.T. Barnum is thought to have said, “there is no such thing as bad publicity.”

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