Issued by ACPE December 9, 2020
ADVISORY COMMITTEE ON PROFESSIONAL ETHICS
Appointed by the Supreme Court of New Jersey
ACPE OPINION 738
Responding to Negative Online Reviews
Several lawyers have sought guidance from the Advisory Committee on Professional
Ethics and the attorney ethics research assistance hotline regarding negative online reviews.
Lawyers have stated that former prospective clients or former clients have posted false,
misleading, and/or inaccurate statements about the lawyer on online reviews and ask whether,
consistent with Rules of Professional Conduct 1.6 and 1.18, they may publicly respond to these
online reviews.
Rule of Professional Conduct 1.6(a) provides that “[a] lawyer shall not reveal information
relating to representation of a client unless the client consents after consultation, except for . . .
disclosures of information that is generally known . . . .” Rule of Professional Conduct 1.18(a)
provides that “[a] lawyer who has had discussions in consultation with a prospective client shall
not use or reveal information acquired in the consultation, even when no client-lawyer
relationship ensues . . . .”
Lawyers are permitted to respond to online reviews posted by clients, former clients, or
prospective clients, but that response cannot reveal “information relating to representation,”
except information that is “generally known,” unless the client consents to the release of such
information.1 See RPC 1.6(a). Hence, while lawyers may express general disagreement with the
prospective client’s statements, they may not reveal confidential “information relating to the
representation” unless the information is “generally known.”
Rule of Professional Conduct 1.6(d)(2) permits a lawyer to reveal confidential
information to the extent the lawyer reasonably believes it necessary to “establish a claim or
defense on behalf of the lawyer in a controversy between the lawyer and the client or to establish
a defense to a criminal charge, civil claim or disciplinary complaint against the lawyer based
upon the conduct in which the client was involved.” Hence, pursuant to Rule of Professional
Conduct 1.6(d)(2), a lawyer may disclose certain confidential information to the extent necessary
to defend a discipline charge or legal malpractice action brought by the client, to pursue an
action seeking fees from the client, or similar matters when the information is relevant to the
defense or the claim.
The Committee finds that an informal “controversy” between a lawyer and a prospective
or former client, arising from the posting of a negative online review, does not fall within the
1
In the Official Comment to Rule of Professional Conduct 1.6, the Court adopted the comment
in the Restatement (Third) of the Law Governing Lawyers on confidential information, which
states:
Whether information is "generally known" depends on all circumstances relevant
in obtaining the information. Information contained in books or records in public
libraries, public-record depositaries such as government offices, or in publicly
accessible electronic-data storage is generally known if the particular information
is obtainable through publicly available indexes and similar methods of access.
Information is not generally known when a person interested in knowing the
information could obtain it only by means of special knowledge or substantial
difficulty or expense. Special knowledge includes information about the
whereabouts or identity of a person or other source from which the information
can be acquired, if those facts are not themselves generally known.
2
safe harbor of Rule of Professional Conduct 1.6(d)(2). Lawyers may not disclose confidential
information merely to protect their online reputation in response to negative comments of this
type.
The Committee reviewed ethics opinions from other jurisdictions on revealing
information in response to online reviews. There is general agreement that a lawyer may not
disclose client information in response to a former client’s negative online review, though a
lawyer may respond in a “proportionate and restrained” manner and state that the lawyer
disagrees with the facts presented by the reviewer. See Pennsylvania Bar Association Formal
Opinion 2014-200 (2014); New York State Bar Association Opinion 1032 (October 30, 2014);
Bar Association of San Francisco Opinion 2014-1 (January 2014); The Professional Ethics
Committee for the State Bar of Texas Opinion No. 662 (August 2016); Los Angeles County Bar
Association Professional Responsibility and Ethics Committee Opinion No. 525 (December 6,
2012); Bar Association of Nassau County Committee on Professional Ethics Opinion No. 2016-
01 (November 2015); Colorado Bar Association Opinion 136 (April 15, 2019); West Virginia
Legal Ethics Opinion No. 2015-02 (September 22, 2015). See also In re Skinner, 758 S.E.2d 788
(Ga. 2014) (State Bar disciplined a lawyer who responded to online negative reviews from a
client, providing personal and confidential information about the client).
The Pennsylvania Bar Association suggested that lawyers respond with this language: “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.” Pennsylvania Bar
Association Formal Opinion 2014-200 (2014). The Committee agrees that this language accords
with New Jersey lawyers’ ethical obligations.
3
Lastly, the Committee notes that lawyers’ ethical obligations to maintain confidentiality
under Rule of Professional Conduct 1.6 differs from their obligations to maintain lawyer-client
privilege. As noted above, Rule of Professional Conduct 1.6 broadly requires lawyers to
maintain confidentiality of “information relating to representation of a client.” In contrast, the
attorney-client privilege protects only “communications” made in confidence between a lawyer
and his or her client. The privilege is part of the Rules of Evidence and applies to admissibility
of information in court proceedings. The body of law concerning waiver of the evidentiary
privilege is inapplicable to lawyers’ ethical obligations under Rule of Professional Conduct 1.6.
In sum, lawyers may respond to negative online reviews posted by clients, former clients,
or prospective clients by stating that they disagree with the facts presented by the reviewer, but
they may not disclose “information relating to representation,” except information that is
“generally known.”
4