Thursday, July 15, 2021

No Right Of Response

The Oregon Supreme Court has reprimanded an attorney for violating the duty of confidentiality in response to negative online reviews

A dissatisfied former client of respondent Brian Conry posted three negative online reviews about him. Respondent posted online responses to all three reviews, disclosing that client had been convicted of two crimes, which he specifically identified. As to one review, respondent also disclosed client’s full name. The Oregon State Bar charged respondent with violating Rule of Professional Conduct (RPC) 1.6, for disclosing information relating to the representation of a client. A trial panel of the Disciplinary Board agreed, rejecting respondent’s assertions either that the information was not within the scope of the rule, or that he was privileged to disclose it under one of the rule’s exceptions. The trial panel concluded that respondent should be suspended for 30 days, and respondent sought review from this court. We agree with the trial panel in part, but we conclude that respondent should be publicly reprimanded rather than suspended.

The attorney had represented the client in an immigration matter. The client retained successor counsel, claimed ineffective assistance and filed bar complaints

At roughly the same time that that first Bar complaint was pending, client posted negative reviews of respondent on the internet. Two of those reviews were posted before the Bar dismissed the first Bar complaint; the third was posted approximately three weeks afterwards. The reviews were posted on Yelp, Google, and Avvo.

Respondent posted responses to those reviews, and it is the content of those responses that are at issue here. All of respondent’s responses were posted in June 2016.

At the end of one lengthy response

[The client] should be thanking his lucky stars instead of posting. He does not know the law or just how lucky he has been. "Please visit my website at brianpatrickconry.com for a list of ‘wins’ over the years that more accurately display my zealousness for my clients. Thank you."

The court

The online world has created opportunities for attorneys to engage in marketing through social media. At the same time, however, it also “provide[s] a platform for unsatisfied clients to post content that could harm a lawyer’s reputation or practice.”

...it appears that negative online reviews may have a dramatic impact on an attorney’s income.

The disclosures involve protected information and was not justified by the "self defense" exception

As applied here, the question is whether the circumstances were such that it was objectively reasonable for respondent to believe that disclosing client’s full name and specific criminal convictions was necessary (e.g., essential or indispensable) for him to establish a claim or defense to client’s allegations.

...We therefore conclude that respondent was not objectively reasonable in his belief that it necessary to reveal client’s name in the Avvo review. By revealing client’s name, respondent violated RPC 1.6(a), and he would not qualify for any self-defense exception under RPC 1.6(b)(4).

Sanction

the presumptive sanction here is a suspension. In light of the difficult issues presented in this case—one of first impression before this court—and the aggravating and mitigating factors, we conclude that such a result would be too harsh. We hold that respondent should be publicly reprimanded.

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2021/07/no-right-of-response.html

Bar Discipline & Process | Permalink

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