Rule 1.6 and Responding to a Client's Public Criticisms

A couple of years ago, Stephen Gillers asked whether the duty of confidentiality prohibits a lawyer from responding to a former client's public criticisms.  As Stephen's post suggested, the Model Rules do not clearly resolve the issue. 

Now comes the Los Angeles County Bar Association's Professional Responsibility and Ethics Committee with a useful opinion on the subject (here).  The opinion addresses the issue under the California Rules of Professional Conduct, which (at least for now) are quite a bit different from the Model Rules, but the analysis is informative. In a nutshell, the opinion says that a lawyer "may publicly respond to such comments as long as the rebuttal: (1) does not disclose any confidential information; (2) does not injure the former client in any matter involving the prior representation; and (3) is proportionate and restrained."

For the reasons referenced in the comments to Stephen's original post, I think the answer is (and should be) the same under the Model Rules. 

(H/T to the always-useful ABA/BNA Lawyers' Manual on Professional Conduct.  I think I've put in a plug for the Lawyer's Manual before, but it deserves another one.  The publication offers the most effective and comprehensive regular coverage of professional responsibility issues I've seen.  If you specialize in professional responsibility and don't subscribe, make it a holiday gift to yourself!)

Comments

[Stephen Gillers]

Basically, in my view, the public response should, if given at all, ordinarily be limited to a denial of the charge and regret that it was made, coupled with a reference to the inability of the lawyer to comment more specifically. Given the limitations in the opinion, I don't see how one could say more, although there may be some unusual exceptions.

Further, I think whether anything is said at all should depend on what the client or former client said. If the client's statement were, e.g., simply disappointment at the lawyer's performance, the lawyer should say nothing in response.

[Andrew Perlman]

That guidance seems right to me, Stephen.

I suspect that this issue is going to arise with greater frequency now that former clients have a growing number of ways to comment publicly about a lawyer's performance.

[Stephen Gillers]

Yes. I got asked about that at a CLE recently. The client -- or as the lawyer said, the "disgruntled" client -- said nasty things about him on YELP.

[Diane Karpman]

We struggled with that Opinion for many years. Then we had to reconcile issues raised in the recent Oasis case, involving the Wutchumna Doctrine: An attorney “may not do anything which will injuriously affect [a] former client in any matter in which [the attorney] formerly represented [the client] ….” Wutchumna Water Co. v. Bailey (1932) 216 Cal. 564, 573-574.

About one third of the members of this Committee, are concurrent members of the Association of Professional Responsibility Lawyers (including two ex-Chairs), they are sophisticated ethics mavens, including one who is on SCOPE, half a dozen who were or are on California’s COPRAC. Incredibly difficult opinion to reach but we believed something had to be done, lawyers needed some guidance and we anticipate that the problems will only grow.