Modern Problems: Are Attorneys Permitted to Respond to Derogatory Internet Postings by Former Clients?
LACBA Update, March 2013
By Lisa Miller, member of LACBA's Professional Responsibility and Ethics Committee, a trial lawyer at the Marcin Lambirth law firm, and an adjunct professor at the University of Southern California. The views expressed are her own. She can be reached at (818) 802-1709 or Lisa@LMillerconsulting.com.
In its Opinion 525 issued on December 6, 2012, concerning the "Ethical Duties of Lawyers in Connection with Adverse Comments Published by a Former Client," the Los Angeles County Bar Association's Professional Responsibility and Ethics Committee (PREC) opined that in a situation where an attorney previously represented a former client in a civil proceeding but no longer represented that client in any respect, and the former client then posted a derogatory message about the attorney on the Internet, the attorney may respond to the former client’s Internet posting, so long as:
(1) the attorney’s response does not disclose confidential information,
(2) the attorney does not respond in a manner that will injure the former client in a matter involving the former representation, and
(3) the attorney’s response is proportionate and restrained.
The question presented to PREC, which led to the above opinion, was: Assuming no confidential information is disclosed in the Internet posting, and the former client’s conduct does not constitute a waiver of confidentiality or the attorney-client privilege, and there is no litigation or arbitration pending between the attorney and the former client, in what manner, if any, may the attorney publicly respond to disparaging public comments by the former client, whether of malpractice or otherwise?
The committee found that an attorney “may not do anything which will injuriously affect [a] former client in any matter in which [the attorney] formerly represented [the client] ….”1 An attorney owes a duty of confidentiality to former clients as well.2 In the absence of waiver of confidentiality and the attorney-client privilege by a former client,3 there is no statutory exception to the duty of confidentiality under Business & Professions Code Section 6068(e)(1) or the attorney-client privilege under Evidence Code Section 950, et seq., that would permit attorneys to defend themselves by disclosing confidences or privileged information.4
LACBA's Formal Ethics Opinion No. 519 opined that no self-defense exception to the lawyer’s duty of confidentiality exists under Business & Professions Code Section 6068(e) that would allow an attorney to disclose confidential client information to defend against a lawsuit brought by a nonclient against the attorney. (Opinion No. 519 assumed that no waiver of any confidential information by the former client existed while the attorney represented the former client. On this basis, absent a statutory exception allowing the attorney to reveal confidential communications in response to the former client’s public statement, the attorney remains obligated to preserve the former client’s confidential information, and the attorney cannot disclose such information in response to that public statement unless authorized to do so by a court’s ruling in a judicial proceeding.)5
Despite this bar on revealing confidential information in responding to the former client’s Internet posting, this does not mean that the attorney cannot respond at all. If the attorney does not disclose confidential or attorney-client privileged information and does not act in a way that will injure the former client in a matter involving the prior representation, counsel may respond.
However, the attorney’s response must be proportionate and restrained.6 Not only must the attorney refrain from revealing any confidential information (because it is assumed that there has been no waiver by the former client) and avoid saying anything that would injure the former client in a matter related to the prior representation, counsel may say no more than is necessary to rebut the Internet statement by the former client.
This rule has been recognized in other contexts where the extent of an attorney’s ability to respond to a statement made by a former client has been considered.7 As a result, counsel need not remain mum in the face of provocative Internet postings by former clients. Rather, counsel is entitled to respond, so long as counsel is careful to hew to the three guidelines established in Formal Opinion 525: the attorney’s response does not disclose confidential information, the attorney does not respond in a manner that will injure the former client in a matter involving the former representation, and the attorney’s response is proportionate and restrained.
1 Wutchumna Water v. Bailey, 216 Cal. 564, 573-74 (1932). See also Oasis West Realty v. Goldman, 51 Cal. 4th 811, 821 (2011); Styles v. Mumbert, 164 Cal. App. 4th 1163, 1167 (2008) (“an attorney is forever forbidden from…acting in a way which will injure the former client in matters involving such former representation” [Citation omitted]).
2 Bus. & Prof. Code §6068(e)(1) (It is the duty of an attorney “[t]o maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets of, his or her client.”); see also Cal. R. of Prof'l Conduct R. 3-100(A); Wutchumna Water, 216 Cal. at 573-74 (“nor may [the attorney] at any time use against [the] former client knowledge or information acquired by virtue of the previous relationship”); Oasis West Realty, 51 Cal. 4th at 821; Styles, 164 Cal. App. 4th at 1167.
3 See, e.g., Evid. Code §912.
4 See General Dynamics v. Sup. Ct., 7 Cal. 4th 1164, 1190 (1994) (“Except in those rare instances when disclosure is explicitly permitted or mandated by an ethics code provision or statute, it is never the business of the lawyer to disclose publicly the secrets of the client”).
5 Los Angeles County Bar Ass'n, Prof'l Responsibility & Ethics Comm., Formal Op. No. 519.
6 See Restatement (Third) of the Law Governing Lawyers, Sec. 64, Comment e (referencing a “proportionate and restrained” public response).
7 See, e.g., Los Angeles County Bar Ass’n, Prof'l Responsibility & Ethics Comm., Formal Op. No. 498 (lawyer may disclose confidential information in a fee dispute with a former client only if relevant to the dispute, if reasonably necessary due to an issue raised by the former client, and if the lawyer avoids unnecessary disclosure); Los Angeles County Bar Ass’n, Prof'l Responsibility & Ethics Comm., Formal Op. No. 452 (lawyer may file a creditor’s claim in former client’s bankruptcy proceeding but may not prosecute objections to discharge); In the Matter of Dixon, 4 Cal. State Bar Ct. Rptr. 23, 58-59 (Review Dept. 1999) (former client’s malpractice suit against lawyer does not wholly waive lawyer’s duties under the lawyer-client privilege but constitutes waiver only to the extent necessary to resolve the suit; attorney may not disclose more than is essential to preserve the attorney’s rights).