Use of Client Names In Attorney Marketing Materials

In July 2022, the Orange County Bar Association issued an advisory opinion that holds that client consent is required before using the name of a client in marketing materials for the lawyer’s business.

The Digest of the Opinion states: Absent informed client consent, the duty of confidentiality precludes an attorney from including on her bio or resume or in other marketing materials the names or other information about her representation of a client or former client if the listing would be embarrassing or detrimental to that client or the client requested it to be kept confidential. An attorney also may not suggest that she regularly represents a client absent that client’s informed consent. In addition, even if listing a representation would not be embarrassing or detrimental to the client, and thereby not a breach of duty of confidentiality, an attorney still would be precluded from listing the client representation if the listing is in any way misleading.

I agree with this advisory opinion. Even client’s whose cases went to trial and resulted in a verdict may not want their identity disclosed or their matter discussed. There is one caveat: if the representation results in a published opinion the lawyer can certainly discuss the opinion or list the opinion on his website or resume. What you should not do is to disclose any confidential facts about the client.

Coaching Witness By Text Message Leads to a 91-day suspension

The Supreme Court of Florida recently decided The Florida Bar v. Derek Vashon James, NO. SC20-128 (November 18, 2021). During a remote deposition, the attorney for one of the parties in a worker’s compensation proceeding coached the witness by sending text messages to the witness with suggested answers to questions. Opposing counsel noticed that the witness was reading text messages and later received some of the messages when they were inadvertently sent to her. She filed a motion for a protective order. “The judge found that the text messages were sent during the deposition, not during a break in the questioning, and that they were not protected by attorney-client privilege, contrary to Jame’s claims.”

The disciplinary referee “found that James’s texts to [the witness] while she was being questioned, telling her what to say, how to answer, to avoid providing certain information, to remember a deposition but not discuss certain checks, and to not give an absolute answer were dishonest.” p. 5. “The referee found the following aggravating factors were present: (1) dishonest or selfish motive; (2) refusal to acknowledge the wrongful nature of the conduct; and (3) substantial experience in the practice of law. In mitigation, the referee found (1) the absence of a prior disciplinary record; (2) full and free disclosure to the Bar or cooperative attitude toward the proceedings; and (3) good character or reputation.”

The referee found that the attorney had violated Rule 3.4(a) (“a lawyer must not … unlawfully obstruct another party’s access to evidence or otherwise unlawfully alter, destroy, or conceal a document….”). The Supreme Court of Florida affirmed that finding. The Supreme Court reversed the referee’s finding that the attorney had not violated Rule 8.4(d) (“a lawyer shall not engage in conduct in connection with the practice of law that is prejudicial to the administration of justice….”). The Supreme Court of Florida found that the behavior of the attorney warranted a ninety-one-day suspension.

Seventh Circuit Affirms Dismissal of Attorney’s Defamation Case

In Law Offices of David Freydin, P.C. v. Victoria Chamara, No. 18-3216 (January 28, 2022), the Seventh Circuit affirmed the dismissal of a defamation case filed by a lawyer who received negative reviews on social media pages. The post that got Freydin in trouble was, of course, on Facebook. Freydin posed the following question: “Did Trump put Ukraine on the travel ban list?! We just cannot find a cleaning lady!” Freydin made further negative comments on the Facebook post.

Freydin’s comments were not popular. Several people made negative comments on his law firm’s pages. Defendant Victoria Chamara left a one-star rating. As the court notes in its opinion, she “called Freydin an ’embarrassment and a disgrace to the US judicial system,” referred to his comments as ‘unethical and derogatory,’ and labeled him a ‘hypocrite,’ ‘chauvinist,’ and ‘racist’ who ‘has no right to practice law.'” Freydin argued that the statements were defamatory per se because they prejudiced him in his profession.

The district court dismissed the case and the Seventh Circuit affirmed that decision. The Seventh Circuit held that the comments were all statements of opinion that were not actionable.

The court noted that the phrases Freydin complained about included “terrible experience,” “awful customer service,” and “don’t waste your money.” The court concluded that there were no implied statements of fact in those statements. “First, the statements do not have precise and readily understood specific meanings. Granted, they are easily understood phrases in the English language. But there are numerous reasons why someone may have had a ‘terrible experience’ or suggest that a product or service would be a ‘waste of money.’ Without additional details, the use of these phrases cannot be understood to be ‘precise.’…Second none of the statements can be objectively verified as true or false. How could a third-party observer gauge whether the commentator received awful customer service, for instance, by just reading a one-star review that says ‘Terrible experience. Awful customer service’? What objective indicator defines whether a given customer service experience was good or bad? Or whether a service or good was worht the money?…We trust that readers of online reviews are skeptical about what they read, both positive and negative. But it is enough in this case that these short reviews did not purport to provide any factual foundation and were clearly meant to express the opinions of the defendants in response to Freydin’s insults to Ukrainians generally.”

Comment: I encourage lawyers not to respond to negative reviews. I might add to that “Do not file a defamation case against an online reviewer.” There is no reason to draw more attention to an ill-advised comment on social media. Instead, take the review in stride and suffer in silence. Devote the time you would spend on the libel case to your practice.

Ed Clinton, Jr.

Hearing Board Recommends Suspension For Poor Communication With Clients

The ARDC Hearing Board has recommended a four-month suspension for a lawyer who, it found, did not properly communicate with his clients and engaged in a conflict of interest in violation of Rule 1.7(a)(2). The lawyer represented a restaurant and four employees (servers) who were accused of violating a local ordinance. The lawyer attended a hearing and agreed to a resolution of the claims. The employees claimed that the lawyer did not have their consent to resolve the cases on their behalf.

Rule 1.7(a) provides: (a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

The ARDC’s Summary stated:

“A local ordinance prohibited persons from exposing their buttocks while acting as a waiter, waitress or entertainer in a business with a liquor license. A restaurant retained Respondent to represent it and four of its servers on charges of violating that ordinance and agreed to pay any fines imposed on the servers if they were found to have violated the ordinance. Without fully informing the servers of their rights and options, Respondent entered pleas admitting that the restaurant and the servers violated the ordinance. Respondent thereby failed to properly consult with his clients concerning the objectives of the representation, failed to properly inform and explain matters to his clients, and improperly represented clients despite a conflict of interest.”

The Opinion continues to describe the testimony of the servers.

“Based on the testimony of Sarah, Briana and Allison, Morales or another manager collected their citations and told the servers they did not have to go to court. Management staff told the servers that Twin Peaks would take care of the situation and the servers would not have to deal with it. None of them ever met with Respondent or expected that anyone would admit to the charge on their behalf. Given the opportunity, Sarah, Briana and Allison each would have sought to present a defense. All three considered any violation the restaurant’s responsibility, not hers, as she was dressed as her employer required. Further, Briana was unaware of the prior police warning. Sarah testified that management told the servers to wear the lingerie despite that warning. While Allison and Briana indicated otherwise, Morales believed that all servers were clad in compliance with the ordinance, and Sarah denied that any portion of her buttocks was exposed. According to Morales, photographs of the servers with their buttocks covered depicted how they were dressed when police arrived on February 11, 2017. (Tr. 59-75, 110, 130-37, 141-43, 151, 176-78, 192, 223-25, 236-39, 317-24, 334-39; Resp. Ex. 6).

Sarah, Briana and Allison first learned that a plea of liable had been entered well after the fact. They were able to obtain information about the disposition of the citations. They were concerned about having any record of this violation and having to disclose the violation when applying for school or jobs in the future.  (Tr. 80-93, 146-47, 152, 170, 173, 325-28).

Based on Respondent’s testimony, he met with the servers on March 9, 2017, told them he represented Twin Peaks, and Twin Peaks authorized him to represent them, at no cost to them, if they did not want, or already have, another attorney. Respondent informed the servers of the March 14 court date, that there were citations against them individually and, if they wanted, they should get counsel to represent them. He told the servers they did not have to use him as their attorney. All agreed to have him represent them. (Tr. 279-83, 288-89, 512). Respondent did not inform the servers of the material risks of joint representation or advise them that they should consult with independent counsel. (Ans. at pars. 16, 17). Respondent did not believe there was any conflict of interest between Twin Peaks and the servers. He did not consider whether the servers might have a cause of action against the restaurant. (Tr. 283-86, 297, 509).

Respondent testified that, during the March 9 meeting, he told the servers that he would see if the village would dismiss the cases against them, but that would require an agreement from the village prosecutor. He recognized that was the servers’ first choice. Respondent believed that no one had any viable defense or was apt to succeed if the case went to hearing, as the police report indicated that these servers all were dressed in a way that violated the ordinance and all covered their buttocks after police issued the citations. Respondent understood that the photographs were taken after the citations were issued, not before. Respondent explained that to the servers. Respondent did not believe the servers had a defense to the citations based on lack of notice to them. While recognizing its potential as mitigation, Respondent was not certain whether the fact that the restaurant dictated the servers’ attire might have been a legal defense to the citations against the servers.

Respondent informed the servers that, if a plea had to be entered, Twin Peaks would pay any fine against them. Respondent saw that as the only real option, absent an agreement from the village prosecutor to dismiss the citations against the servers. Respondent noted that the servers were not familiar with the legal system. From his perspective, all the servers preferred to not spend money for an attorney and to avoid having to go to court or see him on an ongoing basis. Respondent thought he had the servers’ authority to enter a plea on their behalf. (Tr. 280-88, 295- 96, 510-11, 531-33, 542-43, 546-49).

Respondent did not communicate directly with any of the four servers after March 9, 2017. He relied on local managers, particularly Morales and Tony Gutierrez, to communicate with them. (Tr. 279, 288, 522-23). Respondent did not inform the servers of the status of the administrative hearings, Huguelet’s refusal to dismiss the citations against them or his negotiations with Huguelet. (Ans. at par. 20; Tr. 297). Respondent did not inform the servers that he had pled them liable to the ordinance violation, what that plea meant or the time within which to appeal. Respondent sent copies of the disposition to Gessner, but not to anyone at Twin Peaks Orland Park. (Ans. at par. 27;Tr. 292-93, 530).”

Comments: The Panel found a violation of Rule 1.7(a)(2) Conflict of Interest and recommended a four-month suspension. In other words, it was impossible for the attorney to represent both the servers and the restaurant. The restaurant’s goal was to have a speedy resolution of the municipal dispute which the lawyer obtained. The servers’ goal would have been to resist any acceptance of responsibility because it might impact their ability to obtain work in the future. The panel found that the lawyer’s representation of the servers was limited by his representation of the restaurant. The lesson here is to think carefully about conflicts of interest and to retain separate counsel for each party to the municipal proceeding.

New Jersey Opinion Construes Litigation Privilege

The New Jersey Appellate Division has issued an important and thoughtful opinion on the limits of the litigation privilege. The case is Brown v. Brown, No. A-0384-21 (February 3, 2022). The case concerns a family feud. The survivors of Michael Brown had a dispute over certain rental payments for a parcel of real property. Under a 2004 settlement, the title to the property was vested in the plaintiffs. In turn, they were obligated to “assign” to Patricia Brown the sum of $3500 a month for life. Several years later, the plaintiffs began negotiating a sale of the property. Patricia Brown filed a complaint in probate and requested the entry of an order requiring her the plaintiffs (her step children) to show cause why the 2004 settlement should not be enforced. She also recorded a lis pendens. The stepchildren then sued Patricia Brown alleging that the notice of lis pendens constituted tortious interference with an existing contractual relationship, tortious interference with a prospective economic advantage, abuse of process and malicious prosecution.

Brown moved for summary judgment arguing that the litigation privilege. The court denied summary judgment in part on the ground that the litigation privilege did not apply to the lis pendens. Brown appealed. The appellate court held that the litigation privilege did insulate Patricia Brown from the claims based on her notice of lis pendens.

The court explained “What was misconceived in the trial court was what the litigation privilege protects. The privilege does not protect a party from the tortious impact caused by a party’s prior suit; it protects only statements made during the prior suit.” Id. at 7. “It does not protect a litigant from a subsequent suit seeking redress for injuries caused by an adversary’s very act of commencing and prosecuting the earlier suit if that suit was frivolous, vexatious or tortious.” Id at 8.

As for the lis pendens, the court held that the statements contained in the lis pendens were protected by the litigation privilege. The litigation privilege, however, did not insulate a party from suit for damages caused by the filing of an “unauthorized, inaccurate, or false notice of lis pendens.”

The court held that the statements in the lis pendens were privileged. They were the equivalent of in court statements. The court affirmed the denial of summary judgment on the tortious interference claims “because the litigation privilege protects only statements made in judicial proceedings and not the commencement of frivolous, vexatious or tortious lawsuits.”

Conclusion: The litigation privilege protects the lawyer and his client from liability for statements made in court or in litigation documents. It does not protect the lawyer or the client should they choose to make an out-of-court statement. It does not provide immunity from liability for the filing of frivolous lawsuits.

Ed Clinton, Jr.

New York Disbars Attorney For Sexting With Client

The attorney was disbarred after an exchange of text messages with a client. The opinion notes the following:

“Respondent was admitted to the practice of law by this Court on June 24, 1993, and he formerly maintained an office in Auburn. In August 2020, the Grievance Committee filed a petition asserting against respondent a single charge of professional misconduct, which alleges that he engaged in conduct that adversely reflects on his fitness as a lawyer by sending to a client via text message four unsolicited images of his genitalia. The Grievance Committee simultaneously filed a motion for an order suspending respondent from the practice of law on an interim basis on the ground that he had failed to cooperate in a grievance investigation concerning five additional client complaints. Respondent thereafter failed to appear before this Court or to file papers in response to that motion and, by order entered September 16, 2020, the Court suspended respondent from the practice of law on an interim basis effective immediately and until further order of the Court (Matter of Moody, 187 AD3d 1603 [4th Dept 2020]). Respondent remains suspended pursuant to that order. In January 2021, the Grievance Committee filed a second petition asserting against respondent four charges of professional misconduct, including neglecting client matters, failing to refund unearned legal fees, failing to cooperate in the grievance investigation, and failing to comply with attorney registration requirements.
In June 2021, the Grievance Committee filed a motion for an order, pursuant to 22 NYCRR 1240.8 (a) (6), finding respondent in default and deeming admitted the allegations of both petitions on the ground that, although respondent was personally served with the petitions in August 2020 and January 2021, respectively, he failed to file an answer within 20 days after he was served as required under the rules of this Court (see 22 NYCRR 1020.8 [b]). The Grievance Committee has filed proof that respondent was personally served with the motion for default in May 2021. Respondent thereafter failed to file papers in response to the motion on or before the deadline imposed by the Court. Consequently, we grant the motion of the Grievance Committee, find respondent in default on the petitions, and deem admitted the allegations therein.

With respect to the sole charge of the petition filed in August 2020, respondent admits that, in late 2018, he was retained to represent a client in a criminal matter. Respondent admits that, on or about April 20, 2019, while the criminal matter was pending, he engaged in a series of text messages with the client whereby respondent sent to the client four unsolicited images of his genitalia. Respondent admits that, after the client filed a grievance complaint, respondent asserted during the investigation that he mistakenly believed he had been exchanging text messages with a friend or acquaintance who lives in Florida. Respondent admits, however, that the series of text messages between respondent and the client contain numerous references to the personal circumstances of the client, without any indication that respondent believed he was corresponding with a person other than the client.”

Comment: The sexting led to a finding that the lawyer had violated Rule 8.4(d) (conduct prejudicial to the administration of justice) and (h) (conduct that adversely reflects on his fitness as a lawyer). There were also charges that the lawyer had neglected certain client matters.

ARDC Hearing Board Recommends Suspension For Attorney Who Made False or Reckless Statements Impugning Judge’s Integrity

An ARDC Hearing Board panel has recommended a suspension for an attorney who made false or reckless statements impugning the integrity of a judge. Here is a quote from the excellent opinion of the panel:

“The Administrator proved by clear and convincing evidence that Respondent sent three emails to Magistrate Judge Finnegan’s email account containing statements about Magistrate Judge Finnegan’s integrity that were false or made with reckless disregard as to their truth or falsity. By sending the inappropriate emails, particularly after being instructed not to do so, Respondent engaged in conduct that disrupted the tribunal and prejudiced the administration of justice…..

Respondent has been licensed to practice in Illinois since 2006. She is also licensed in Texas and Michigan. (Tr. 54-55).

Barry Epstein hired Respondent in 2012 to represent him in a dissolution proceeding filed by Paula Epstein. In 2014, Respondent filed a complaint on Barry’s behalf in the United States District Court for the Northern District of Illinois, alleging that Paula and her attorney, Jay Frank, violated federal law by accessing Barry’s private emails without his authorization. (Tr. 55). Magistrate Judge Sheila Finnegan (Judge Finnegan) supervised discovery in the federal proceeding. Judge Finnegan maintained an email account known as the “proposed order account”. The charges before us arise from three email messages Respondent sent to the proposed order account and others involved in the Epstein proceedings.  (Tr. 56).

Respondent sent the first email at issue on April 18, 2017, after Judge Finnegan denied her emergency motion for an extension of time to take Paula’s deposition. Respondent sent the email

to the proposed order account, opposing counsel Scott Schaefers, and Scott White, the courtroom deputy. It stated as follows in relevant part:

Today in court, no matter what I said to you, you had already made up your mind, and even questioned my sincerity with regard to my preparation for upcoming trial.

***

. . . since the beginning, you never seem to doubt anything he [Schaefers] says, as you appear to doubt me. Still, I stated to you in open court that “I don’t want to be hated” for doing my job, but it sure seems that way, as I never get a break. Scott is the lucky guy who senses same as he can just pick up the phone to call you knowing he will get his way…or for so-called the Posner Defense2.

***

It’s not fair that my client (and I) is [sic] being treated badly for suing his wife/ex wife, and everyone is protecting Paula – why? Since when does “two” wrongs make a “right”? [sic] How am I to prove my case if I am not given a fair chance to do my work, properly.

(Adm. Ex. 1).

The following day, Judge Finnegan instructed Respondent that the parties were not to use the proposed order account to argue the merits of a motion, share their feelings about a ruling, or talk generally about the case with her. She told Respondent her email was improper and directed her not to send any such emails in the future. (Adm. Ex. 1). Respondent received and understood Judge Finnegan’s instructions.  (Tr. 69-70).

On June 15, 2017, Respondent filed a motion to extend discovery and for leave to depose Jay Frank. Judge Finnegan denied the motion. Allison Engel, Judge Finnegan’s law clerk, emailed a copy of Judge Finnegan’s order to Respondent and Schaefers at 6:37 p.m. on June 23, 2017. Two hours later, Respondent sent an email to Engel, Schaefers, and the proposed order account which stated as follows, in relevant part:

I’m very upset, I do not agree with Judge Finnegan’s order and I will depose the former co-defendant, Jay Frank, despite the fact this court is protecting him and his co-conspirer! Scott Schaefers had no standing to challenge my subpoena to depose

Jay Frank! I’m entitled to depose him! And I will call him to testy [sic] at trial to show the world what a corrupt lawyer he is! And the judges who protect this criminal by squeezing the discovery deadlines!!! No no no!

This is outrageous order of Judge Finnegan and it will be addressed accordingly! Judges are helping the criminal to escape punishment by forcing to shorten all deadlines!!!

This Judge is violating my client’s rights first by the truncated discovery deadlines and now helping Plaintiff to escape punishment for wrongs she committed!

I’m outraged by the miscarriage of justice and judges are in this to delay and deny justice for my client!

I’m sickened by this Order!!! (Adm. Ex. 2).

On June 26, 2017, Respondent sent another email to Engel, Schaefers, and the proposed order account, which stated as follows in relevant part:

Plaintiff’s motion is not late just because this court decided not to extend discovery deadlines, to protect the Defendant! I have asked this court numerous times for an extension of all cutoff deadlines, without avail. Take this into account when drafting your flawed order.

***

For anyone to insult me in this degree calls questions [sic] this court’s sincerity and veracity. How dare you accuse me of not having looked at the SC docket regularly.

***

How do you know I did not see the SC order???? Where do you get this information? Exparte communications with Defendant’s attorney, Scott? – smearing dirt behind my back?

The more I read this order, again and again, I am sick to my stomach, and I get filled with anger and disgust over this ‘fraudulent’ order by this court!

***

You both, Allison and J. Finnegan, have done me wrong, and depicted me very poorly in your public order. How dare you do that to me?!

What goes around comes around, justice will be done at the end! I wonder how you people sleep at night? Including Scott!(Adm. Ex. 3).

On June 27, 2017, Judge Finnegan entered an order admonishing Respondent for violating her directives related to the proposed order account and making highly inappropriate statements. Judge Finnegan directed Respondent to immediately cease all email communication with her and her staff. (Adm. Ex. 4).

Respondent acknowledged it was wrong to send the emails but presented numerous explanations for her conduct. She testified she was under a great deal of stress due to a short discovery schedule in the federal case, her client’s abusive behavior, and a dispute with a former partner. (Tr. 190-91, 213-217). She further testified she made poor word choices because English is not her native language and she wrote the emails “in the heat of the moment” when she felt the court was insulting her. In addition, she testified that the purpose of the proposed order account was unclear. (Tr. 164, 292). With respect to the second and third  emails, she did not think she was violating Judge Finnegan’s directives because she addressed the emails to Judge Finnegan’s law clerk rather than to Judge Finnegan.  (Tr. 68, 77).

Respondent’s belief that she and her client were not being treated fairly was based upon the entirety of the record, including the short discovery schedule and rulings that were not favorable to her client. (Tr. 67-68).

After the Epstein matter ended, Judge Finnegan submitted a complaint about Respondent’s conduct to the Executive Committee of the United States District Court for the Northern District of Illinois (Executive Committee). On January 22, 2018, the Executive Committee suspended Respondent from the general bar for six months and the trial bar for twelve months. The Executive Committee found that Respondent used “unprofessional, inappropriate, and threatening language” in her emails. In order to be reinstated, Respondent was required to demonstrate that she obtained professional assistance with managing her anger and complying with the Rules of Professional Conduct. (Adm. Ex. 7). The Executive Committee reinstated Respondent to the general bar on August 7, 2018 and the trial bar on June 11, 2019.  (Adm. Exs. 9, 10).

C.         Analysis and Conclusions Rule 8.2(a)

Attorneys may express disagreement with a judge’s rulings but, as officers of the court, have a duty to protect the integrity of the courts and the legal  profession.        In re Walker, 2014PR00132, M.R. 28453 (March 20, 2017) (Hearing Bd. at 19-20). Consequently, Rule 8.2(a) prohibits an attorney from making a statement concerning the qualifications or integrity of a judge that she knows to be false or with reckless disregard as to its truth or falsity. Ill. R. Prof’l Conduct 8.2(a). Respondent is charged with violating Rule 8.2(a) when she made the statements set forth above impugning Judge Finnegan’s integrity. We find the Administrator proved this charge by clear and convincing evidence.

It is undisputed that Respondent made the statements at issue. The fact that she made them in email messages rather than in a pleading or document available to the public makes no difference. Rule 8.2(a) applies broadly, with no limitation as to where or how a statement is made. The statements at issue clearly pertained to Judge Finnegan’s qualifications and integrity.

Respondent not only expressly questioned Judge Finnegan’s “sincerity and veracity” but accused her of protecting and assisting criminal conduct, participating in improper ex parte communications with attorney Schaefers, and entering a “fraudulent” order. These statements unquestionably crossed the line from expressing disagreement with rulings to making unsubstantiated accusations that maligned Judge Finnegan’s honesty. An attorney violates Rule 8.2(a) by making such statements without a reasonable basis for believing they are true. There is no such reasonable basis on the record before us.

Although Respondent disputes that she knowingly or recklessly made false statements, she had no objective, factual basis for her comments. Subjective belief, suspicion, speculation, or conjecture does not constitute a reasonable belief. Walker, 2014PR00132 (Hearing Bd. at 21).

Here, Judge Finnegan, who is presumed to be impartial, set forth the factual and legal reasons why she denied Respondent’s requests to extend discovery. For Respondent to assert that Judge Finnegan made her rulings to deny justice to Barry Epstein and protect criminal conduct, rather than for the reasons articulated in her orders, was unreasonable and untenable. Respondent was not entitled to decisions in her client’s favor, and a judge’s rulings alone “almost never constitute a valid basis for a claim of judicial bias or partiality”. See Eychaner v. Gross, 202 Ill. 2d 228, 280 (2002). Likewise, there are no objective facts whatsoever to support Respondent’s accusations that Judge Finnegan’s conduct was “fraudulent” or that she engaged in improper ex parte communications.

Accordingly, we find that the Administrator established by clear and convincing evidence that Respondent made statements concerning Judge Finnegan’s qualifications and integrity that were false or made with reckless disregard for their truth or falsity, in violation of Rule 8.2(a).”

Comment: Every lawyer will confront situations where the court rules in a manner that is unexpected or unforeseen. It is a challenge in these situations to control your temper and act in a professional manner. As lawyers we owe our clients a duty to render effective advocacy and that duty requires us to be courteous to the court. We all make mistakes and we all can become frustrated with the judicial process. That is no excuse for attacking the integrity of a judge or the judicial system. When you feel yourself becoming angry or intemperate, that is the time to take a step back and apologize if you have made an intemperate remark.

If you have a question about an ethics issue, do not hesitate to call us. We can often provide some assistance. The earlier you make that call the better, as many errors can be mitigated or corrected.

Ed Clinton, Jr.

It Is Time to Rethink The Rules on Responding To Negative Reviews

The American Bar Association has an advisory opinion, No. 496, and an article on how to respond to negative reviews.

https://www.americanbar.org/groups/litigation/publications/litigation-news/top-stories/2021/how-to-ethically-respond-to-negative-online-reviews/

I tell lawyers not to respond to negative reviews. However, I believe that it is long past time for the rules to change. Under the current system, clients have free rein to disparage lawyers and lawyers can do little about it without incurring discipline.

Here is how I would like to see the rules change.

First, a client who writes a negative review of the lawyer should be on notice that the lawyer may respond to that review. The lawyer should be able to say “The review is false” or “The review is misleading.” The lawyer should be able to say “We did not represent this person.” or “We declined this person’s case” without any fear of a disciplinary proceeding.

Second, if the lawyer is falsely accused of a wrongful act, the lawyer should be able to respond to that accusation without fear of discipline, including explaining the facts necessary to rebut the false accusation.

Third, unless the client reveals her name and discloses confidential information, the lawyer should not reveal the client’s identity or any confidential information.

Note that the rules now do not allow the types of responses I have outlined above. The system is not fair to lawyers and it should be changed.

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