On December 9, 2020, New Jersey’s Advisory Committee on Professional Ethics released Opinion No. 738, stating that lawyers are not shielded by the safe harbor rule when responding to negative online reviews on websites such as Yelp.  The Committee did not completely bar lawyers from responding to negative online reviews, or even defending themselves, but cautioned that lawyers cannot disclose confidential information regarding the client or case.

The Committee’s opinion may be hard for some lawyers to swallow (others may find it even harder to keep quiet).  Online reviews can steer away potential clients, and lawyers in New Jersey have complained of former clients posting false, misleading, and/or inaccurate statements about their lawyer and the representation they received.  Despite the inclination many lawyers may feel to become a zealous advocate for themselves online, Rules of Professional Conduct (“RPC”) 1.18 and 1.6 advise that lawyers must maintain the confidences of both clients and prospective clients.

The Committee noted that the safe harbor provision of RPC 1.6 does allow a lawyer to disclose confidential information, but only to the extent necessary to defend a discipline charge or legal malpractice action brought by a client, or to pursue an action seeking fees from a client.  See RPC 1.6(d)(2).  Therefore, the Committee determined that the safe harbor provision does not cover lawyers revealing “confidential information merely to protect their online reputation in response to negative comments.”  The Committee also noted that ethics opinions from other states—such as Pennsylvania, California, Texas, Colorado, New York, Georgia, and West Virginia—have similarly determined that a lawyer may respond in a “proportionate and restrained” manner and state that the lawyer disagrees with the facts presented when confronted with negative online reviews.  The Committee made one final distinction that the laws applying to online reviews differ from those concerning attorney-client privilege.