Libel is a ancient cause of action. The ease of communication on the internet allows a lie to spread farther and faster than ever. But the Communications Decency Act 47 USC 230 (c) immunizes internet service providers and others who post defamatory statements. But it has not abolished the state tort actions against the speaker or writer.
Abraham Lincoln famously said that a lawyer’s stock in trade is his time and advice. But the most important asset may be reputation. So the need to respond to sharp defamatory words in online reviews on websites like Yelp arises often. But the confidentiality command of RPC 1.6 drastically limits the ability to do so. The New York State Bar Association in Ethics Opinion 1032 (2014) opined that such an “informal” statement that a lawyer did not adequately communicate and that his services were lacking did not trigger the self defense right of RPC 1.6 (b)(5) which permits disclosure of confidences “to establish a claim or defense”.
Similarly Pennsylvania Bar Association Formal Opinion 2014-300 opined that a lawyer may respond in only a “general” way to a negative review, being careful not to reveal any confidential information. Similarly the Bar Association of San Francisco in Opinion 2014-1 was of the view that
While the online review could have an impact on the attorney’s reputation,
absent a consent or waiver, disclosure of otherwise confidential information is not ethically permitted in California unless there is a formal complaint by the client, or an inquiry from a disciplinary authority based on a complaint by the client. Even in situations where disclosure is permitted, disclosure should occur only in the context of the formal proceeding or inquiry, and should be narrowly tailored to the issues raised by the former client.
In my own experience as a member of the New Jersey Supreme Court’s Advisory Committee on Professional Ethics I was voted down decisively. I argued that the lawyer had been defamed by the client who wrote an online assertion that she had been abandoned. That I felt entitled the lawyer to respond publicly that the retainer agreement limited the lawyer’s undertaking to research and investigation. In the view of the Committee that would be a breach of the duty of confidentiality.
But a lawyer can reveal such information if she takes the step of filing a defamation action. Florida lawyer Anne Marie Giustibelli took that step against a client who accused her of lying about fees. Because Giustibelli was trying to “establish a claim…in a controversy between the lawyer and the client” she was allowed to disclose confidences. But filing defamation actions and seeking punitive damages is such a blunt instrument that it is likely to be rarely employed. Perhaps a rule that a defamatory comment opens the door to rebuttal does have merit? – gwc
Hello and welcome to this Ethics Alert blog which will discuss the recent opinion of the Fourth District Court of Appeal upholding a judgment in a lawsuit filed by a lawyer alleging libel for false online comments.. The case is Ann-Marie Giustibelli, P.A. et al v. Copia Blake and Peter Birzon, Case No. 4D14-3231 (Florida 4th DCA, January 6, 2016).
Professional Responsibility: A Contemporary Approach 