How to Deal With Bad Client Reviews – Ethically

How to Deal With Bad Client Reviews – Ethically 

The internet has changed how potential clients locate attorneys. They often begin searching for attorneys by Googling attorneys near them. They narrow their list by reading online reviews on social media sites, Yelp, Avvo, Google, and other online review sites.

Having a robust online presence can boost a lawyer’s business significantly. For the most part, online advertising is less expensive and more effective than many other forms of advertisement. However, how should attorneys ethically respond and deal with negative online reviews?

Negative Reviews Are Part of Doing Business

You will never please every client. There will always be some clients who feel that they did not receive the best legal services possible. They could have had unrealistic expectations, or they may have had a genuine complaint about the services they received. 

In either case, attorneys must be cautious when responding to bad reviews from clients. Issues of legal ethics could come into play. An attorney could create serious problems if the response to a bad client review violates any rules of professional conduct or confidentiality rules.

Consider the Facts and Circumstances 

Before jumping to the keyboard to respond to a negative review, do your due diligence to determine why the reviewer left a negative review. 

First, verify that the reviewer was or is a client. If you did not represent the person, contact the review site. Some review sites remove reviews if the reviewer cannot verify their identity. 

If the site refuses to remove the review, you may want to use a generic response asking the person to contact your office because you want to resolve the matter but do not have a record of the person as a client.

If the person is or was a client, it is time for reflection. Review the file and consider whether the client has a valid complaint. You may want to call the client to discuss the matter, but it might not be productive if the client is angry or the relationship ended poorly.

Review Your Practice’s Policies and Processes

The client might have a valid complaint about the services you or your staff provided. Review and evaluate the policies and processes related to the client’s case and the specific complaint contained in the review. 

If you discover a problem, correct it immediately. You do not want to repeat the same mistake and risk having additional bad reviews from other clients. 

Should I Respond to a Client’s Bad Review?

The American Bar Association recently released a formal opinion about responding to online criticism. Formal Opinion 496 was dated January 13, 2021. According to the opinion, the main concern related to responding to an online review would be maintaining the confidentiality of client information. 

The ABA Model Rules of Professional Conduct 1.6 prohibits an attorney from disclosing any information related to representing a client without the client’s informed consent, except in a few narrow exceptions. 

One exception would be establishing a claim or defense on behalf of the attorney in a controversy between the client and the attorney. The Committee on Ethics and Professional Responsibility concluded a negative online review is not a controversy within the meaning of the rule.

The Committee goes on to provide a detailed and comprehensive discussion of attorneys responding to online criticism and negative reviews. It determined that lawyers should consider ignoring the bad review. Responding to a bad review could draw more attention to the matter and invite additional negative responses from the reviewer.

It also stated that if an attorney does choose to respond to bad reviews online, the attorney must not disclose information that relates to a client matter or that could lead to the discovery of confidential information by another party. 

Examining Other Opinions and Policies Regarding Ethical Responses to Negative Reviews

Attorneys should check with their local and state bar associations for opinions regarding the ethics of responding to reviews. Numerous bar associations throughout the country have issued opinions on the matter. Some opinions you may want to consider include:

Attorneys should also carefully review the Rules of Professional Conduct for their specific state. The rules may address when and how attorneys can respond to online reviews.

Final Thoughts About Ethical Responses to Bad Reviews

Negative reviews can hurt your business and your reputation. Most attorneys who have aggressive marketing strategies and a strong online presence may choose to respond to reviews. If so, they must ensure that their responses do not violate the rules of professional conduct or pertinent case law.

Any response that a lawyer posts to an online review should be measured, polite, and ethical. Never admit fault or apologize, but always offer a way to resolve the matter without giving any information that could be considered confidential or privileged. 

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What Lawyers Can and Can't Say on Their Websites

What Lawyers Can and Can’t Say on Their Websites

Every state has its own bar association, and every bar association sets its own legal and ethical rules regarding legal advertising. In addition, the American Bar Association is an overarching association which often sets standards and rules adopted by states individually.

Issues around legal advertising fall into three broad categories:

  • What is legal or illegal?
  • What is ethical or unethical?
  • What is simply good or bad advertising?

It is of vital importance that a lawyer knows the rules, laws, and responsibilities that apply in the jurisdiction in which they practice. These rules, laws, and responsibilities will govern what an attorney may or may not say on their website. Often, a person will hire a blogger to provide content for their website. That attorney is ultimately responsible for every word on their website.

The Role of Blogging in Legal Advertising

So much of the legal profession uses blogging as one of the primary tools of legal advertising these days. Blogging imparts information in a way that engages a reader regarding an area of the law that a person may have an interest in. With the advent of legal blogging, attorneys have had to be careful to ensure that the boundaries of client confidentiality are kept. This is particularly true when a blogger uses hypotheticals. Those hypotheticals must not allow a person reading the blog to identify a client or that client’s situation. That is the gist of the American Bar Association’s Formal Opinion 480.

These admonitions also pertain to other “public commentary” by attorneys in online forums such as listservs, articles, postings, and platforms such as Twitter which allow micro-posts.

Disclaimers Help

Those attorneys who use a website as part of their legal advertising must be particularly careful of two things. First, you must be careful not to establish an attorney-client relationship by virtue of any contact made by a client on the website. This could be a matter of a person emailing the firm and asking for advice. It could be a “contact us” blank form on the website that allows a person to contact an attorney at the firm. A disclaimer that specifies that such conduct does not form an attorney-client relationship should be somewhere on the site.

Likewise, because most attorney websites use blogs as a way to connect with potential clients, you must be careful not to have a client misconstrue the blog’s content. A disclaimer, prominently placed on the site, stating that the blog is not dispensing legal advice, but rather is only providing general information is helpful. The disclaimer should also state that a person should contact the attorney directly.

Some state bar associations require these disclaimers. An attorney should check the rules in their jurisdiction and monitor their websites for compliance.

Misleading Information

The Model Rules of Professional Conduct, particularly Rules 7.1 and 7.2, adopted by most jurisdictions, and laws against fraud prohibit the use of materially misleading statements or information on an attorney’s website.

This includes overt statements and omitted facts.  This can have implications for client testimonials, and in general how an attorney talks about the services they provide. This requires that lawyers be truthful and avoid exaggerations or “puffing” in describing their skills or results. Tooting your own horn with a statement like, “we are the best in town,” may be allowable if you are in used car sales but may run afoul of the state bar association.

Claims of Expertise

Lawyers must be careful about claiming expertise. Most bar associations offer certification in particular areas of practice. Gaining certification usually requires some degree of additional training, testing, and peer review. Lawyers who claim expertise without having the appropriate certification, run the risk of being sanctioned by their bar association.

As examples, these statements run from the most to the least problematic regarding expertise:

  • “We are certified experts”
  • “We are experts in our field”
  • “We specialize in our field”
  • “We focus on this area”
  • “We practice in this area”

Claims of expertise, like the puffing of skills or case results, can unduly misrepresent an attorney’s skills, unfairly sway a potential client to hire the lawyer, and unwittingly “guarantee” a particular result for a client.

Comparison to Other Attorneys

Claims of being “the best” or “the best in town” and the like can get an attorney sued. An attorney must be careful to never put anything on their website that is not true. Claims of being “the best” are not easily verifiable. How does one determine who is “the best?” It is at best, subjective puffery. Vulnerable clients who need help can be easily swayed by these statements.

Guaranteeing Results

Like comparisons to other attorneys, statements guaranteeing results are highly problematic. These statements are sometimes overt, such as “we will win your case for you.” Other times, they are more subtle, “we will get you what you deserve.” No lawyer may ethically guarantee a result without running afoul of ethics rules. Any statement that leads a client or may lead a client to form unjustified expectations regarding results is prohibited.

What a lawyer can do is talk honestly about their experience in a particular area of representation. For example, if a firm practices only in the area of personal injury, an attorney can state  “personal injury, it’s all we do.” The statement is factual. Likewise, a website can state the number of wins at trial for a specified time period as long as the statement is true. Such a statement may be something like “we tried 100 cases in the last year and won 75.”

Final Thoughts

Websites are an increasingly important tool used by attorneys for advertising their practices. Attorneys must remain vigilant regarding compliance in their websites. Without adherence to ethical and legal standards, attorneys open themselves to the possibility of being sued for malpractice. Caution taken now can prevent a headache later. 

 

 

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How Video Conferencing Platforms Like Zoom Pose Problems For Attorneys

How Video Conferencing Platforms Like Zoom Pose Problems For Attorneys

 Zoom is booming. Covid19 has pushed attorneys out of their offices and into their homes to work remotely. As a result, video conferencing has taken on a greater role in the workplace. Attorneys need to be able to interview clients, attend hearings, and conduct depositions as a matter of routine. 

Video conferencing platforms such as Zoom, GoToMeeting, and Microsoft Teams, have made that possible in a pandemic world. Although many law firms had been using video conferencing tools before the pandemic, their use has escalated. But these platforms are not without concerns for an attorney and for their clients.

Understanding these concerns is a starting point toward solving problems before they manifest. Many of these issues stem from an attorney’s ethical duties to their clients. The Model Rules of Professional Responsibility have been adopted in most jurisdictions in the United States, including California. These Model Rules, as adopted, govern an attorney’s ethical duties. Three Model Rules are relevant to the ethical concerns raised by such platforms as Zoom.

Attorneys Must Be Competent

Model Rule 1.1 states that an attorney must provide competent representation to the client. This requires that an attorney have or gain the legal knowledge, skill, thoroughness, and preparation necessary for that representation. Much of the issue of competence lies in an attorney’s skill in providing legal analysis. Comments by the American Bar Association and State Bar of California make it clear that competence includes keeping abreast of relevant technology.

According to Brian White, a lawyer and founder of Attorney Brian White & Associates, PC, “An attorney must understand how technological changes affect issues such as confidentiality and protecting work product. All video conferencing platforms have some security involved. Zoom is the most studied platform on security. However, it is important to understand a platform’s security tools and any deficits in those tools.”

Using Zoom as an example, maintaining security of the meeting link and password are critical to ensuring that only those who should be attending the meeting, are. That may mean using a new meeting link for each meeting or sending a password separately from the link itself.

There are other issues regarding security and encrypted sources for the sharing of documents. Again, using Zoom as an example, it is possible to share the screen during a client meeting. Attorneys must be careful that in doing so, they do not disclose other client information. Sharing screens can and should be regulated by the meeting host and documents should only be shared via encrypted means.

Attorneys Must Protect a Client’s Confidentiality

Model Rule 1.6 requires that an attorney protect a client’s confidentiality. This includes various aspects from the representation itself to client disclosures to work product and other client documents. Confidentiality is the bedrock of the attorney-client relationship.

The above security discussion is relevant to the issue of confidentiality. It is important that extra precautions be taken for sensitive meetings. An attorney may want to consider locking the meeting after everyone has joined.

Recording a session can mean that an attorney considers the issue of storage of the recorded session. For example, Zoom allows the meeting host to store the recording on the attorney’s computer, or it can be stored on Zoom’s cloud. The location of the cloud server may be an issue for sensitive material. For sensitive communications, an attorney should consider whether the platform allows end to end encryption or not. This can be an important component in determining which video conferencing tool to use for what kind of meeting.

An Attorney Must Keep the Client Up to Date

In both the Model Rules and in the California Rules of Professional Responsibility, the attorney must keep the client reasonably informed about the status of a matter and follow reasonable requests for information. (Rule 1.4) This imperative requires that despite the pandemic, that an attorney keeps their client advised of the status of the legal matter. During representation, some matters are more sensitive than others, but all client communications are subject to confidentiality concerns.

Picking the medium most suited to the level of security needed is critical to keeping the client informed and protecting confidential information. This duty extends to any other staff conducting the meeting on behalf of the attorney.

Finally, a word of caution for the attorney working at home. It is important that an attorney work in a dedicated area free from traffic from other family members. While a dog entering the camera shot may be cute, a spouse entering the same camera shot is a violation of the client’s confidentiality.

Concluding Thoughts

Attorneys must fully investigate and use tools available to protect client communications. This may mean spending time learning about security tools available and making appropriate choices depending on the level of sensitivity involved. For sensitive matters, an attorney may want to choose a video conferencing tool with end to end encryption.

Technology is ever-evolving. It is important to stay abreast of the technological tools that are available at present and other tools as they become available. This will help attorneys do their job and help clients feel secure.

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Working Remotely Challenges the Idea of Practicing Within a Given Jurisdiction

Working Remotely Challenges the Idea of Practicing Within a Given Jurisdiction

Covid-19 has affected every aspect of our lives, including our working lives. Suddenly, firms are advertising remote legal positions on job board sites around the country. An attorney licensed to work in New York, lives and works remotely in his home in New Jersey.

This doesn’t just involve those whose work and home lives are in close proximity but in separate jurisdictions. Attorneys are looking to work far outside their normal jurisdiction. Remote work makes this possible. However, attorneys are bound by ethical standards and some of those standards are relevant to remote working. In particular, lawyers are licensed or authorized to work in a particular state. They are not licensed to work outside that state. Doing so may open them to a charge of the unauthorized practice of law, which can lead to sanctions or possible disbarment.

The Movement Toward Loosening Restrictions

Even before the onset of Covid-19, attorneys had been calling for reform of what many view as protectionist rules that prohibit an attorney admitted in one state from practicing in another. Computers, internet, and conferencing platforms all make it possible to do much of the work involved in an attorney’s work life from any location. According to Jason Stephens of Stephens Law, PLLC, “With the realities of Covid in the workplace, remote working has become the norm for many attorneys”. As a result, more attorneys are now working outside their jurisdiction.

ABA Model Rule 5.5

The American Bar Association’s (ABA) Model Rule 5.5 addresses practicing across jurisdictional lines. Most states have adopted Rule 5.5 in some form.

Rule 5.5 prohibits any attorney from practicing law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction. Nor may an attorney assist another in doing so. Specifically, the Rule states that an attorney may not establish an office or other systematic and continuous presence in that jurisdiction for the practice of law, or hold themselves out to the public as being admitted to practice law in that jurisdiction.

The Rule also carves out exceptions to this general rule. It is acceptable for an attorney to work in another jurisdiction in which the attorney is not licensed provided the employment is temporary. However, the attorney may not have been disbarred or suspended in any jurisdiction. In addition, the attorney must be working in association with a duly licensed attorney in that jurisdiction.

The Rule also provides another safe harbor provision. It is acceptable for an attorney in good standing within their home state to work temporarily, providing legal services that arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice.

So, when does work stop being temporary and cross into persistent practice? While there is no bright line, the work may not be so long that it rises to the level of systematic and continuous presence in that jurisdiction. This standard is one that is open to interpretation.

States Are Beginning to Address the Problem

Seeing the possibility of remote working as a necessity for some time to come, states are beginning to address the jurisdictional issue. Some states already allow lawyers to practice across state lines, Minnesota, North Carolina, Arizona, and New Hampshire among them. These states allow out-of-state lawyers to practice as long that they disclose that they’re not licensed to practice in that state.

Washington D.C has also relaxed its rules during the pandemic. The DC Court of Appeals Committee on Unauthorized Practice of Law has opined that the necessity to work remotely due to Cvid-19 fits within the temporary practice exception outlined in Rule 5.5. New York has allowed a similar exception.

Florida is considering making the change permanently. A Florida state bar advisory opinion has stated that an out of state attorney is not engaged in the unauthorized practice of law if solely practicing federal intellectual property matters, which was his area of expertise as long as the attorney was not practicing Florida law. While this will have to be confirmed with Florida Supreme Court action, it represents movement toward an ethical approach to serving client needs.

What Will Happen After The Pandemic Ends?

It is uncertain whether the rules regarding crossing jurisdictional boundaries will continue to relax after the pandemic ends. The trend is likely to continue into the near future. But as one year stretches into two, the question of what is “temporary” will undoubtedly have to be revisited.

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