(The Scarlet Letter)
What are lawyers to do when disgruntled ex-clients make false claims against their lawyers online for all the world to see (for all time as far as we know)?
Are lawyers to bear the brunt of false accusations under an ethical obligation of silence owed to their ex-client defamers?
Most of us now agree that ESM, or “electronic social media,” is, unfortunately, a world-wide cesspool of information, misinformation, distortion, and propaganda.
There is always the option of suing former clients for defamation, of course. But compare the costs of simply replying to an online comment along these lines: “The ex-client urged us to undertake the strategy he now complains of against our advice. We regret we did not obtain the results that we and the client had hoped for”) or another far more common situation (“The ex-client says Our Distinguished Law Firm ripped her off company by charging her company over $500,000 for the company’s litigation but we stated our hourly fees up-front, we made the uncertainties and risks of litigation clear from the start, and we gave a budget estimate (which was higher than what we charged). Further, we presented the company for over three years in hard-fought litigation.”
Let’s put aside whether lawyers or law firms would want to respond in these ways to these false complaints of incompetence and thievery. (A great many (probably most) would not.) (This linked extraordinary (NSFW) online response to alleged online defamation (not involving lawyers, btw) seems to have exponentially increased the damages sought to be remedied.)
Let’s put aside that lawyers would need to be extremely careful that their public responses not pose any threat to the outcome of ex-clients’ still-pending matters. Should such comments be considered breaches of the lawyers’ ethical obligations?
It is unclear to us just how broad or damaging online defamation of lawyers (or other people) is today or in the future. This is extremely difficult to measure. Therefore, those arguing to keep the ethical lid on lawyers lips locked tight might suggest the proposed rule change is a solution in search of a problem.
On the other hand, we all know that defamation or reputational harm is almost always difficult to measure or assess.
And, more importantly in our view, if we allow the proposed narrow exception to lawyers’ obligations of confidentiality to address this issue, what, really, are we sacrificing? Is there really a material downside risk, broadly, to the sanctity of the confidentiality that we otherwise protect between clients and lawyers?