I have written and given presentations on basic ideas that lawyers should consider in the social media context. One common problem is the mean-spirited Yelp review.
One thing to remember is that several lawyers have been disciplined for responding to reviews posted on Yelp or Avvo or other sites. The lawyer is vulnerable because the lawyer cannot reveal any confidential information in responding to the review. If confidential information about a client or former client is revealed, a disciplinary complaint is sure to follow.
With that being said, I noted the following review on my own Yelp page:
“I contacted this firm to take over our case. He said he needed to review our case and would get back to me. This was two weeks ago. I sent him 2 emails with no response and called him again. He again said he is reviewing it and would get back to me. That was a week ago. He just emailed me TODAY telling me he does not want the case. Well thanks a lot for the notice!!! I had to have my new counsel file an appearance by TOMORROW! Glad I didn’t put all my eggs in his basket. If this is any indication how he handles his cases……beware!”
The reviewer believes that I took too long to decline to represent him. The problem for me is that – we have no idea who this person is and no record of his name or any similar name in our computers. Worse still, the reviewer allegedly hails from another state, where I am not licensed to practice law. After a careful search of my computers, I was unable to determine if this reviewer ever contacted our firm.
Yelp, of course, does not allow the lawyer to respond to reviews.
There is only one thing you can say for sure – if I did reject this matter and this client (We have no record of any communication with any such person), it was the correct decision.
As for Yelp, there is little that can be done about a review that is false other than filing a lawsuit and wasting time on an unproductive endeavor. Like other professionals, we lawyers have to accept that the First Amendment protects free speech and sometimes clients exercise free speech.
Tag: Social Media Issues
Online lawyer directory Avvo hit with class action for allegedly wrongly profiting from lawyers’ ‘professional ID’ | Cook County Record
This lawsuit alleges that Avvo is violating the Illinois Right of Publicity Act. The Act provides: “A person may not use an individual’s identity for commercial purposes during the individual’s lifetime without having obtained previous written consent from the appropriate person or persons.” There is a fine for each such usage.
I don’t believe this lawsuit has any merit at all as Avvo has a First Amendment right to post information on attorneys who are licensed by a state. In sum, Avvo is urging a construction of the Act that is unconstitutional.
Edward X. Clinton, Jr.
Colorado Suspends Lawyer for 18 Months For Publicly Shaming Former Clients On the Internet
I can’t say this enough: don’t criticize former clients on the internet or social media. It won’t help you collect your fee bill and it will guarantee discipline from the regulatory body in your state. This social media fiasco was described in a recent case from Colorado.
This case is captioned People v. James C. Underhill, Jr., 15 PDJ 040 (Colorado).
As one might imagine this disaster began with a family law matter in which the lawyer was hired to represent the husband in a post-decree dispute. A fee dispute arose and the clients terminated Underhill.
The opinion states: “The couple [client and his new wife] then posted complaints about Underhill on two websites. He responded with internet postings that publicly shamed the couple by disclosing highly sensitive and confidential information gleaned from attorney-client discussions, in contravention of Colo. RPC 1.6(a) (a lawyer shall not reveal information relating to the representation of a client) and Colo RPC 1.9(c)(2) (a lawyer shall not reveal information relating to the representation of a former client).
“Underhill then sued the couple for defamation. Although he knew the couple had retained counsel, Underhill communicated with them ex parte on several occasions, even though their counsel repeatedly implored him not to do so. Through this conduct, Underhill violated Colo. RPC 4.2 (a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by counsel in the matter, unless the lawyer has the consent of the opposing counsel). When the lawsuit was dismissed, Underhill brought a second defamation action in a different court, alleging without adequate factual basis that the couple had made other defamatory internet postings. Underhill thereby violated Colo. RPC 3.1 (a lawyer shall not bring a proceeding unless there is a basis in fact for doing so that is not frivolous) and Colo. RPC 8.4(d) (a lawyer shall not engage in conduct that prejudices the administration of justice).”
The court ordered an 18-month suspension to be added to a prior suspension.
Edward X. Clinton, Jr.
Louisiana Disbars Attorney For Social Media Campaign Against Judiciary
IN RE McCOOL, La: Supreme Court 2015 – Google Scholar:
The respondent in this matter was disbarred because she made false and defamatory statements about judges.
“ By way of background, respondent was friends with Raven Skye Boyd Maurer (“Raven”). Following Raven’s divorce in 2006, she and her former husband were involved in a bitter child custody dispute. Raven accused her ex-husband of sexually abusing their two young daughters, H. and Z.,[2] and unsuccessfully sought to terminate his parental rights in proceedings pending in Mississippi before Judge Deborah Gambrell.[3] Respondent is not admitted to the Mississippi Bar and was not admitted pro hac vice in Raven’s Mississippi case, but she did offer assistance to Raven as a friend.
Meanwhile, respondent filed a petition in St. Tammany Parish on behalf of Raven’s new husband, who sought to adopt H. and Z. The presiding judge, Judge Dawn Amacker, stayed the intrafamily adoption proceedings pending resolution of the Mississippi matter. Judge Amacker also declined to exercise subject matter jurisdiction in response to a motion for emergency custody filed by respondent on Raven’s behalf. After Judge Amacker issued her ruling declining to exercise subject matter jurisdiction, respondent filed a writ application with the First Circuit Court of Appeal, which was denied.[4] On August 31, 2011, this Court likewise denied writs. Maurer v. Boyd, 11-1787 (La. 8/31/11), 68 So. 3d 517.
Unhappy with the various rulings made by Judge Gambrell and Judge Amacker and believing those rulings were legally wrong, respondent drafted an online petition entitled “Justice for [H] and [Z]” which she and Raven posted on the internet at change.org, along with a photo of the two girls. With regard to the Mississippi proceeding before Judge Gambrell, the online petition stated:
To Judge Deborah Gambrell, we, the undersigned, ask that you renounce jurisdiction in this matter to the Louisiana court because the children have lived exclusively in Louisiana for the past three years. Their schools, teachers, physicians, therapists, little sister and brother and the vast majority of significant contacts are now in Louisiana. There is also an adoption proceeding pending in Louisiana over which Louisiana has jurisdiction and in the interest of judicial economy, and the best interest of the girls, Louisiana is the more appropriate forum to oversee ensure [sic] the “best interest” of the girls are protected. If you refuse to relinquish jurisdiction to Louisiana, we insist that you remove the Guardian Ad Litem currently assigned to the case, and replace him with one that has the proper training and experience in investigating allegations of child sexual abuse in custody proceedings. We further insist that, in keeping [with] S.G. v. D.C. 13 So. 3d 269 (Miss. 2009), you specifically define the Guardian Ad Litem’s role in the suit; require the new Guardian Ad Litem [to] prepare a written report; require that the report be shared with all parties prior to a hearing; that all proceeding be conducted on the record, with advance notice and opportunity to be heard, and that an evidentiary hearing be conducted to review the allegations of child sexual abuse, and that no visitation be allowed until you have seen all of the evidence.
As to Judge Amacker and the Louisiana proceedings, the petition stated:
To Judge Amacker, we, the undersigned, insist that you withdraw the unlawful stay of the adoption proceedings currently pending in your court, and, in accordance with La.Ch.C. art. 1253, a hearing be set with all due speed to allow the girls’ stepfather to show why it is in the girls’ best interest that they be adopted by him, thereby terminating all parental rights of the girls’ biological father.
Respondent re-posted the online petition on her blog site and in online articles she authored, one of which again included a photo of the two girls. She provided contact information for the judges’ offices and this Court, and added comments in which she solicited and encouraged others to express their feelings to the judges and this Court about the pending cases:
In spite of overwhelming evidence that the girls have been abused by their father, the judge in Mississippi, Judge Deborah Gambrell, of the Chancery Court of Marion County, Mississippi, refuses to even look at the evidence, and has now ordered the girls be sent to unsupervised visitation with their father.
Judge Dawn Amacker, in the 22nd JDC, Division L, for the Parish of St. Tammany in Louisiana also refused to protect the girls, even though she has the power and authority to protect them. RM now has an application to the LA supreme court, asking that it order Judge Amacker to protect the children.
Insist that Judge Amacker and Judge Gambrell do their jobs! If you want more info, go to [website] and read the writ application to the LA supreme court.
Please sign the petition, circulate it to all of your friends and families and call Judge Amacker and Judge Gambrell during the hours of 8:30 to 5:00 starting Monday, August 15 to ask why they won’t follow the law and protect these children. Let them know you’re watching and expect them to do their job and most of all, make sure these precious little girls are safe!
Call the Louisiana Supreme Court and tell them you want the law to protect these girls [phone number]. [A]sk about the writ pending that was filed by attorney Nanine McCool on Friday, August 12, 2011.
Let’s turn this around and be [H’s] hero. Please sign the Care2 petition and continue to call Judge Gambrell to ask her why she is unwilling to afford [H] and [Z] simple justice.
You can sign the petition and lend your voice to this cause here. Or, you can contact directly. Contact information is: [provided contact information for the judges].
In response to the postings made by respondent, on August 14, 2011—two days prior to a hearing in Mississippi on Raven’s motion for contempt and to terminate her former husband’s parental rights—Judge Gambrell’s staff received an e-mail from Heather Lyons, a signer of the online petition. Ms. Lyons stated she lived and voted in Forrest County, Mississippi, and she would “be paying attention” to Raven’s case “due to the fact that Judge Gambrell refused to hear evidence of abuse in the case of little girls who are likely being molested by their father. She has an obligation to protect our most vulnerable children. Please do not let them down judge!””
The Louisiana Supreme Court held that McCool had violated Rule 3.5(a) and (b) and Rule 8.4(a) by conducting an online campaign and by faxing copies of certain online petitions to the courts. The Court further held that McCool violated Rule 8.4(c) by making false statements about the court proceedings in the adoption matter by claiming that the judges had “refused” to hear certain evidence. Lastly, the Court held that McCool had engaged in conduct prejudicial to the administration of justice (Rule 8.4(d)). The court held that McCool was disbarred.
This case is similar to other cases involving similar conduct, such as the JoAnne Denison case in Illinois. Attacking the integrity of judges and the fairness of judicial proceedings in social media will often merit the most severe sanctions. Lawyers who engage in such conduct are risking their professional lives.
It is always good to remember that you can criticize the reasoning of a judicial opinion, but you cannot make false statements impugning the integrity of the judiciary. The courts regard defamatory statements as an attack on the integrity of the entire legal system.
Edward X. Clinton, Jr.
Lawyer Receives Reprimand for disclosing confidences in a response to an online review by a former client
IN THE MATTER OF SKINNER, Ga: Supreme Court 2014 – Google Scholar:
This is a case from July 2014 that I missed, in which a lawyer was reprimanded by the Georgia Supreme Court for disclosing confidential information after a client posted negative online reviews about the lawyer. The lawyer was retained to handle an uncontested divorce. The client made complaints that her case was not handled properly. The client posted critical online reviews about the lawyer.
The court explains:
“In his report, the special master found that a client retained Skinner in July 2009 to represent her in an uncontested divorce, and she paid Skinner $900, including $150 for the filing fee. For six weeks, the client did not hear anything from Skinner, and after multiple attempts to contact Skinner, the client finally was able to reach Skinner again in October 2009. At that point, Skinner informed the client that Skinner had lost the paperwork that the client had given to Skinner in July. Skinner and the client then met again, and Skinner finally began to draft pleadings for the divorce. The initial drafts of the pleadings had multiple errors, and Skinner and the client exchanged several drafts and communicated by e-mail about the status of the case in October and early November 2009. Those communications concluded by mid-November, and Skinner and the client had no more communications until March 18, 2010, when the client reported to Skinner that her husband would not sign the divorce papers without changes. In April 2010, both the client and her husband signed the papers.
A disagreement developed about the fees and expenses of the divorce. Skinner asked the client for an additional $185 for certain travel expenses and the filing fee. In April and early May 2010, Skinner and the client exchanged several e-mails about the request for additional money. Then, on May 18, the client informed Skinner that she had hired another lawyer to complete her divorce, and she asked Skinner to deliver her file to new counsel and to refund $750. Skinner replied that she would not release the file unless she were paid. Although Skinner eventually refunded $650 to the client, Skinner never delivered the file to new counsel, contending that it only contained her “work product.” New counsel completed the divorce within three months of her engagement.
Around this time, the client posted negative reviews of Skinner on three consumer Internet pages. When Skinner learned of the negative reviews, she posted a response on the Internet, a response that contained personal and confidential information about her former client that Skinner had obtained in the course of her representation of the client. In particular, Skinner identified the client by name, identified the employer of the client, stated how much the client had paid Skinner, identified the county in which the divorce had been filed, and stated that the client had a boyfriend. The client filed a grievance against Skinner, and in response to the grievance, Skinner said in August 2011 that she would remove her posting from the Internet. It was not removed, however, until February 2012.”
Comment: Don’t respond to any online postings with any information at all. Its not worth it. Its best to think clearly and protect the client.
That being said, the Court did not discuss or analyze whether the information that was disclosed was already public. It would appear that some of the information, such as the name of the employer and the County where the divorce was pending was not confidential information. The lack of analysis is unfortunate.
Edward X. Clinton, Jr.
Legal Ethics Lawyer 