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.

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.

One of the more common problems lawyers face is the negative online review. (Yes, I am proud to say that I have earned the ire of two prospective clients who published reviews of me). Lawyers tend to get into trouble when they share confidential client information in response to a negative review. Like most gaffs the information is true and accurate, but it is confidential to the lawyer. Lawyers have been disciplined for disclosing confidential information in responses to online reviews.

My advice is that any negative review should receive a response such as “I respectfully disagree with this review.” The North Carolina Bar Association has issued an advisory opinion that makes a similar recommendation. The recommendation can be found here https://www.ncbar.gov/for-lawyers/ethics/proposed-opinions/

In response to the former client’s negative online review, Lawyer may post a proportional and restrained response that does not reveal any confidential information. The protection of client confidences is one of the most significant responsibilities imposed on a lawyer. Rule 1.6(a) of the Rules of Professional Conduct provides that a lawyer may not reveal information acquired during the professional relationship with a client unless (1) the client gives informed consent, (2) the disclosure is impliedly authorized, or (3) one of the exceptions set out in Rule 1.6(b) applies. Rule 1.6(a) applies to all information acquired during the representation. Under Rule 1.9(c), a lawyer is generally prohibited from using or revealing confidential information of a former client. Therefore, Lawyer may not reveal confidential information in response to the negative online review unless the former client consents or an exception set out in Rule 1.6(b) applies. See 2018 FEO 1 (lawyers are cautioned to avoid disclosing confidential client information when responding to a negative review).

Comment: when you receive a negative review you should (a) assess the situation privately; (b) determine if it is something you can control; and (c) respond in a low-key fashion. Remember that negative reviews are just part of practicing law in the digital age. Take your lumps and move on. You will be just fine.

Ed Clinton, Jr.