This Month's Topic: Online Ratings of Lawyers
Summary
This month’s blog post addresses three cases involving ratings of lawyers by online postings, through sites such as Avvo or Yelp. In two cases, lawyers used false identities, either to trash an opponent or to promote the lawyer. In the third case, a former client posted an on-line review of the lawyer’s services that includes accusations the lawyer regarded as false. The lawyer’s response disclosed confidential client information, raising the issue of how far a lawyer may make disclosures in self-defense.
1. Trashing, Thrashing, and Deceiving Opposing Counsel
A. Facts. Carlson represented the husband in a contentious divorce. Carlson had a difficult relationship with opposing counsel, S.L. Posing as a fictitious former client of S.L., Carlson posted a very negative review of S.L. on the lawyer review site, Avvo. Avvo shared the review with S.L. At S.L.’s request, Avvo determined the review came from Carlson’s computer. S.L. shared the facts with Carlson’s employer. After initially claiming innocence, Carlson confessed to the employer, removed the Avvo posting and apologized to S.L.
B. Consequences. Carlson resigned her employment. Carlson also stipulated to a public reprimand, imposed by the court. Carlson’s conduct involved dishonesty and gratuitously burdening a third person, in violation of Rules 4.4(a) and 8.4(c). In re Carlson, 833 N.W.2d 402 (Minn. 2013).
C. Related Cases. Thrashing (5th degree assault) opposing counsel, has the same result as trashing - a public reprimand. In re Stafford, 373 N.W.2d 275 (Minn. 1985). Other cases in which attorneys have assumed false identities, or caused agents to do so, have resulted in public or private discipline, depending on the facts. William J. Wernz, “Pretexting,” Prevaricating and Getting the Facts, MINN. LAW. (Oct. 30, 2006).
2. Self-Laudation Takes a New Form
A. Old Self-Laudation. Decades ago, when ethics rules were more dominantly aimed at distinguishing the profession of lawyering from the lower standards of business, “self-laudation” was an offense. It meant unduly calling attention to oneself, as by advertising, or using blue stationery, or conniving to receive favorable notice in the media. Since the late 1970s, when the U.S. Supreme Court began applying First Amendment commercial speech standards to lawyer ads, few vestiges of the self-laudation prohibitions remain.
B. New Self-Laudation: Yelp. Some who are the subjects of online ratings are tempted to inflate ratings with their own opinions. A recently-filed lawsuit alleges that a San Diego firm surrendered to temptation. Allegedly, the firm caused employees and a spouse to post laudatory pseudo-client ratings. Whether the suit has merit and whether discipline proceedings may follow is to be determined.
3. Lawyer Self-Defense in an Online Controversy
A. Discipline Complaint. On August 26, 2013, the Illinois Attorney Registration and Discipline Commission (ARDC) filed an ethics complaint against a lawyer, Betty Tsamis. The second count alleged a malicious breach of confidentiality. In re Tsamis, Commission File No. 2013PR00095.
B. The Underlying Case. Tsamis represented Rinehart in an unemployment compensation case. The case was lost. A bad fact for Rinehart was that, as Tsamis later disclosed, Rinehart had been fired for beating up a female coworker. Rinehart did not pay all of Tsamis’ fees.
C. The Client’s Online Attacks. Rinehart posted a client review of Respondent's services on the legal referral website Avvo in which he discussed his dissatisfaction with Tsamis’ services. Rinehart stated in the posting, "She only wants your money, claims ‘always on your side’ is a huge lie. Paid her to help me secure unemployment, she took my money knowing full well a certain law in Illinois would not let me collect unemployment. [N]ow is billing me for an additional $1500 for her time."
D. The Lawyer’s Defense and Offense. Tsamis responded to Rinehart’s second critical review. "This is simply false. The person did not reveal all the facts of his situation up front in our first and second meeting. [sic] When I received his personnel file, I discussed the contents of it with him and informed him that he would likely lose unless the employer chose not to contest the unemployment (employers sometimes do is [sic]). Despite knowing that he would likely lose, he chose to go forward with a hearing to try to obtain benefits. I dislike it very much when my clients lose but I cannot invent positive facts for clients when they are not there. I feel badly for him but his own actions in beating up a female coworker are what caused the consequences he is now so upset about." The ARDC Complaint alleged Tsamis’ last sentence violated Rule 1.6.
E. The Minnesota Confidentiality Exception Rule – Disclosure in a “Controversy.” Rule 1.6(b)(8) provides, “(b) A lawyer may reveal information relating to the representation of a client if: ... (8) the lawyer reasonably believes the disclosure is necessary to establish a claim or defense on behalf of the lawyer in an actual or potential controversy between the lawyer and the client, to establish a defense in a civil, criminal, or disciplinary proceeding against the lawyer based upon conduct in which the client was involved, or to respond in any proceeding to allegations by the client concerning the lawyer’s representation of the client.”
F. The Illinois (and Model Rule) Confidentiality Exception Rule. The ABA Model Rule, and Illinois Rule 1.6(b)(5) differ slightly from the Minnesota counterpart: “A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: ... (5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client.”
G. Longstanding Tradition Permitted a Lawyer to Disclose to “Defend . . .Against an Accusation” in Minnesota. From 1985 to 2005, Minnesota Rule 1.6(b) allowed a lawyer to reveal client information needed to “defend... against an accusation of wrongful conduct.” Before 1985, the Minnesota Code of Professional Responsibility likewise allowed disclosure to defend against such an accusation. Minn. Code. Prof. Resp., DR 4-101. Before the Code, an ABA opinion and a leading commentary likewise found, “The lawyer may make such disclosures as are necessary to protect himself against false accusations,....” Henry S. Drinker, Legal Ethics 138 (1953), citing ABA Op. 202 and other authorities. Thus, the traditional view was that a lawyer could disclose confidential client information as needed to defend the lawyer against an accusation of wrongful conduct, regardless of whether the debate occurred outside of litigation.
H. Necessary Disclosure Permitted Without Litigation Context. Some of the confidential information Tsamis revealed to defend herself was not the basis of any charge of wrongful disclosure. Tsamis’ public disclosure of her advice to Rinehart, “he would likely lose” was not alleged to be improper. The ARDC thereby apparently took the position that information needed for defense in a “controversy,” outside the litigation context, could be disclosed.
I. Allegedly Unnecessary Disclosure – “Beating Up a Female Coworker.” Tsamis went a step farther in defending herself. She stated that Rinehart’s “own actions in beating up a female coworker are what caused the consequences he is now so upset about." The ARDC charged this disclosure violated both Rule 1.6 and Rule 4.4(a). In the ARDC’s view, the disclosure was unnecessary and was made to intimidate and embarrass Rinehart.
J. Analysis. Rinehart had twice posted that Tsamis sought fees rather than Rinehart’s welfare, because Tsamis “took my money knowing full well a certain law in Illinois would not let me collect unemployment.” The ARDC citations from Rinehart’s postings do not include any claim by Rinehart that he had a meritorious case that had been lost by Tsamisis’ incompetence. Thus, it may appear that the “beating up a coworker” disclosure was unnecessary for self-defense. However, Tsamis could argue that her disclosure was necessary to rebut Rinehart’s claim that Tsamis’ failure to disclose a law was the problem with his case, rather than his own conduct. Tsmasis might also be able to argue that she did not make any disclosure, because the filings in Rinehart’s case are public records.
K. Are Reports From Public Records Disclosures of Client Information? Assume that Rinehart’s unemployment compensation file was a public record. In Minnesota, does a lawyer’s disclosure of client information in a public record fall within the protection of Rule 1.6? The only reported case gives a negative, but not fully authoritative, answer. OLPR charged Fuller, a lawyer, with violating Rule 1.6 by disclosing his client’s criminal record. A Supreme Court referee rejected this charge, reasoning, “A similar check by any member of the public would show that Hanson had been convicted of the bad check charge.” In re Fuller, 621 N.W.2d 460 (Minn. 2001). OLPR did not appeal this finding, and so the issue was not presented to the Supreme Court. Most authorities hold that Rule 1.6 is violated by a lawyer’s unnecessary disclosure of negative information about clients found in public records, at least when the records are not readily available or well known.
L. Does “Defense in a Controversy” Require Actual or Looming Litigation? In the author’s opinion, “controversy” extends beyond actual or looming litigation, to situations such as Rinehart’s attack on Tsamis’ reputation. Without deciding whether all of Tsamis’ disclosures were “necessary,” the author agrees with the ARDC that disclosures necessary for defense may be made in an online controversy, such as that involving Tsamsis and Rinehart. For approximately before 2005, when the current Rule 1.6 was adopted, disclosures necessary to defend against an “accusation of wrongful conduct” were permitted, outside the litigation context. There was no intent, with the 2005 Rule amendments, to alter this permission, by using “controversy,” rather than “accusation.” In addition, a lawyer is permitted to make necessary disclosures “to respond in any proceeding to allegations by the client concerning the lawyer’s representation of the client.” Rule 1.6(b)(8). If “controversy” were restricted to a “proceeding,” these provisions would be duplicative.
M. A Problem in Ethics Jurisprudence. Whether Tsamis might make the arguments above, and whether they might prevail, are compromised by Count I of the Complaint against her. That count alleges she converted client funds. If Count I is sustained, it may well eclipse any fine distinctions regarding a lawyer’s right of disclosure in self-defense.
4. OLPR’S Position
In response to an inquiry whether OLPR has taken a position regarding whether the “defense in a controversy” exception to confidentiality applies only in litigation, OLPR reported it “does not yet have a specific policy or position that addresses this question.”