My combined score of the ABA Ethics Opinion on Responding to Damaging Critiques – My Shingle
More than a decade after customers started leaving attorney reviews online, the ABA has now provided Ethical Guidelines for Responding to Online Criticism, Formal Statement 496. As in most countries, the ABA’s position of a negative customer review is not to create the kind of controversy with a customer – like a misconduct claim – that would warrant disclosure of confidential customer information as a defense. As a result, attorneys who disclose their clients’ trust in order to respond to online criticism may face disciplinary action.
Comment 496 referred to two jurisdictions that take a slightly different approach. Colorado Formal Opinion 136 (2019) found that if an online review is controversial, attorneys may disclose confidentiality, though they should be wrong on the confidentiality side if unsure. With DC Bar Formal Opinion 370 (found here), attorneys can with caution disclose that customer trust is being defended in response to online comments.
The ABA statement included a list of “best practices” for responding to online criticism. This includes asking them to remove a bad rating, not responding at all to stop triggering negative feedback, or asking the commenter to contact the attorney to take the conversation offline. The ABA also suggests that attorneys use their professional obligation to maintain confidence as an explanation for limited comment.
Many attorneys have criticized the ABA’s position as an unfair interference with language that could harm attorneys – especially Soli – by rendering them vulnerable to unjustified attack. And although I criticize many ethical decisions in general, I don’t find the ABA statement too burdensome. While the ABA’s recommendation not to get involved is unwise (and contrary to all business advice on responding to reviews), the ABA statement would not prevent attorneys from approving most of Hubspot’s suggested templates for responding to online criticism use.
Even if lawyers can ethically respond to a negative review by unpacking a client’s dirty laundry in public, it may not be the best approach from a business perspective. Imagine a situation where a lawyer accused of being rude and overwhelming a client in a review blames the client for ramping up the bill due to their troubled relationship with their ex. I would view the lawyer as a bully and a lack of discretion in bad taste, and I would be unlikely to include recommendations. And I think a lot of potential customers would think the same way.
Undoubtedly, negative online reviews can seriously affect a law firm. An online source reports that a single negative review can drive 22 percent of potential customers away. However, a negative review can also provide an opportunity to attract a customer, as 57 percent of customers look to an online company’s reaction to negative reviews. Lawyers who respond apologetically to online criticism and try to correct it can overcome the negative effects of online reviews. And such answers are still permissible according to the ABA statement.