Analysis

Responding to Online Criticism (General Rule: Don’t)

A recent ethics opinion from the ABA Standing Committee on Ethics and Professional Responsibility, Formal Opinion 496, examines the options available to lawyers when confronted with what it describes as the “regular” occurrence of the phenomenon that “[c]lients, opposing parties, and others are increasingly taking to the Internet to express their opinions of lawyers they have encountered.” In this edition of his Professional Responsibility column, Anthony E. Davis discusses the principal conclusions in the Opinion, and the lessons it, and NYSBA Formal Opinion 1032 on the same topic, holds for New York lawyers.

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Anthony E. Davis Anthony E. Davis

A recent ethics opinion from the ABA Standing Committee on Ethics and Professional Responsibility, Formal Opinion 496, examines the options available to lawyers when confronted with what Opinion 496 describes as the “regular” occurrence of the phenomenon that “[c]lients, opposing parties, and others are increasingly taking to the Internet to express their opinions of lawyers they have encountered.” In this article we will discuss the principal conclusions in the Opinion, and the lessons it, and NYSBA Formal Opinion 1032 (2014) on the same topic, holds for New York lawyers.

Opinion 496 begins by recognizing that the fundamental issue raised by these situations is the duty to preserve client confidentiality. The Opinion then sets out the relevant section of the ABA Model Rule of Professional Conduct (MRPC) 1.6 on the Duty of Confidentiality, with particular reference to the so-called “self-defense” exception under MR 1.6(b). Since this article focuses on the position in New York, we begin with New York’s version of this rule (NY RPC 1.6), which differs in a number of respects, including both the definition of what is confidential information (NY RPC 1.6(a)), as well as in the exceptions, specifically including the scope of the “self-defense” exception.

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