The New Jersey Supreme Court’s Advisory Committee on Professional Ethics has said – in a binding opinion – that lawyers slandered in an online review are limited to a denial. Only if a definite controversy arises – e.g. in a malpractice suit or disciplinary action. While the Committee’s opinions are subject to discretionary review by the Supreme Court itself the Committee’s published opinions bind all members of the bar. An unusual aspect of New Jersey law is that any member of the bar and any bar association has standing to petition the state’s high court for review.
Thus a lawyer who believes the First Amendment them to file a defamation action disclosing facts about the representation would have standing to petition the Supreme Court which, in its discretion, may overturn or modify the ACPE opinion. – GWC
Source: ACPE – FW: “Trashed in an Online Review? Responding Is OK, But Don’t Say Too Much,” NJLJ, 12-10-20
Lawyers who receive negative online reviews from clients are free to post a response, but must avoid disclosing confidential client information, according to an opinion by New Jersey’s Advisory Committee on Professional Ethics.
Lawyers responding to online reviews posted by clients cannot reveal “information relating to representation,” except where that information is “generally known” or the client consents to the release of such information, the committee said in ACPE Opinion 738
While lawyers have some latitude in discussing clients’ cases publicly in the context of defending a malpractice suit or disciplinary complaint against the lawyer, the same freedom does not apply to an “informal controversy” over the posting of a negative online review, the committee said in its Opinion 738, made public Wednesday.
The committee offered a suggested response for such situations, which it said complies with New Jersey lawyers’ ethical obligations: “A lawyer’s duty to keep client confidences has few exceptions and in an abundance of caution I do not feel at liberty to respond in a point by point fashion in this forum. Suffice it to say that I do not believe that the post presents a fair and accurate picture of the events.” The statement was suggested by the Pennsylvania Bar Association.
New Jersey’s committee took up the issue of responding to negative online reviews in response to several requests to the committee and its ethics assistance hotline for guidance. Lawyers said former clients and former prospective clients have posted false, misleading and inaccurate statements about them.