An attorney’s reputation may be at the mercy of Facebook. Or Twitter, LinkedIn, and so forth. Anyone can anonymously post a true or false comment about the lawyer or rate the lawyer with only one star.

Lawyers must be restrained in responding because they are prohibited from disclosing confidential information in response, and confidential means all information related to representation, not just privileged information.

The Supreme Court declined to adopt a fix for this situation proposed by the Minnesota State Bar Association and the Lawyers Professional Responsibility Board. Both groups proposed different changes to Rule 1.6 of the Minnesota Rules of Professional Conduct which now effectively prevents lawyers from responding except in lawsuits or disciplinary proceedings. (See sidebar for proposed amendments to Rule 1.6)

The LPRB solidified that rule in its Opinion 24 on Sept. 30, 2016, which said that the lawyer may not reveal any information about the representation of the client when responding to comments.

It said, “Lawyers are cautioned that, when responding to comments posted on the internet or other public forum which are critical of the lawyer’s work, professionalism, or other conduct, any such response should be restrained and should not, under Rule 1.6(b)(8), reveal information subject to Rule 1.6(a), MRPC,” the opinion said.

The LPRB told the court that it did not object to part of the MSBA’s proposed change, which would strike the words that allow a response if reasonably necessary to “establish a claim or defense on behalf of the lawyer in an actual or potential controversy between the lawyer and the client.” The word “controversy” is confusing because it is broader than the word “proceeding,” also used in the rule, said ethics attorney Charles Lundberg. The phrase is not found in other states’ rules, Lundberg said. “It’s a special Minnesota thing.”

Confusion will continue, said ethics lawyer Ken Jorgensen in an email to Minnesota Lawyer: “The MSBA proposed amendment to Rule 1.6 is an attempt to obtain clarity and guidance for lawyers who are subjected to allegations by former clients that are both false and serious. Unfortunately, the confusion created by Lawyers Board Opinion #24 remains.

“Although the court rejected the MSBA’s attempt to define the limited circumstances in which lawyers could respond to such allegations, it also declined the invitation by the Lawyers Board and Office of Lawyers Professional Responsibility to eliminate the ‘actual or potential controversy’ language in the existing rule.

“Many years ago during my tenure in the OLPR, the court refused to discipline a lawyer for violating Opinion #13 because the Opinion went beyond the rule it was interpreting. The court’s refusal to eliminate the ‘controversy’ language is, in my opinion, further reason to question whether Opinion #24 interprets, or improperly restricts, the exception in the existing rule.”

Robin Wolpert, LPRB chair, sent Minnesota Lawyer a response to the order by e-mail. She wrote, “We appreciate the Court’s careful evaluation of the issues and the opportunity to provide the Board’s perspective and experience regarding client confidentiality and the proposed changes to Rule 1.6.”

“Reasonably certain propositions”

Ethics attorney William Wernz told Minnesota Lawyer in an email that “I think the Court didn’t amend the rule because it felt there weren’t enough instances of lawyers being confronted with the client attack / confidentiality issue. This is a very difficult area to find the right balance between confidentiality and a right of self-defense.

“LPRB, OLPR and MSBA all told the Court the current rule needs clarification, so there will be some continuing uncertainty,” he said.

But the court may be considering that the MSBA and the OLPR were not on all fours with each other. “It’s very, very rare that the MSPA and the LPRB take different positions. The court is used to having one voice from them,” Lundberg said.

Wernz offered some “reasonably certain propositions” for lawyers going forward. One is that the lawyer may deny that he failed to follow client instructions, per a statement made by director Susan Humiston at the hearing on the rule. This position seems to imply that the lawyer may also state that other client allegations are false, he said.

Secondly, if a client attack spawns a public debate that may affect third parties, the lawyer may make necessary disclosures.

Thirdly, the lawyer may sue the client for defamation per se and make necessary disclosures in the suit under Rule 1.6(b)(8). National authorities are divided on whether a lawyer may also publicly disclose the pendency of the defamation per se suit that has been publicly filed, Wernz said. One a complaint is served, “you have a proceeding,” Lundberg noted.

And fourth, disclosures may be made in a “potential” proceeding, e.g. to alert the lawyer’s malpractice carrier or to correct the potential plaintiff’s misunderstanding, per Rule 1.6(b)(8).

Ethics attorney Eric Cooperstein said that he recently guided an attorney though a situation as that encompassed in the rules, and she contacted other clients and ask them to post responses. She received an overwhelming positive response, Cooperstein said.

The OLPR also offered some advice to lawyers, noting that they are still able to disclose confidential information in an actual civil, criminal or disciplinary proceeding. It also said that “a lawyer seeking recourse from negative posts or client commentary may respond by (1) stating that the lawyer has a duty of confidentiality to the client and will not respond online, and (2) inviting the client to constructively address the dispute in private.”

MSBA’s petition

The MSBA’s petition came about because of Opinion 24, asking the court to allow a lawyer to disclose confidential information in response to a specific, serious allegation made outside of a legal proceeding. It asked the court to remove the word “controversy” from the rule because it has proved ambiguous and Opinion 24 appears to say that there are no circumstances in which the “actual or potential controversy” provision in the rule permits disclosures. Additionally, the OLPR has taken the position that “public controversy” refers to issues outside legal proceedings, that is, “issues that are debated publicly and that have substantial ramifications for persons other than those engaged in it.”

The MSBA concluded, “[T]he Committee’s proposal requires, for disclosures outside a litigation ‘proceeding,’ that the client make an accusation that is specific, serious, and public, and that also discloses confidential information. These requirements will result in very few permissions to disclose. The proposed amendments are also clear enough to reduce or eliminate the uncertainty and controversy resulting from the current rule and from Lawyers Board Opinion 24.”

In a written comment to the court, Wernz supported the MSBA petition and pointed out that the issue presents not only the questions about confidentiality and a lawyer’s reputation, but also the public’s interest in accurate information about lawyers. “The public thinks best of the legal profession when confidentiality is balanced with important social values. The public has important interests in accurate information about lawyers and lawyers have great interests in their reputations,” Wernz wrote.

LPRB’s response

The LPRB and the director of the OLPR, Susan Humiston, approved eliminating the reference to “controversy,” but rejected any other change to Rule 1.6. In its comments to the MSBA’s petition, it said that “confidentiality is a core tenet of the attorney-client relationship, and is integral to the fiduciary duties that attorneys owe to their clients.” It said that the rule contains exceptions to the principle of confidentiality in instances of “overriding interest of critical importance,” but that no such interest exists here.

It also observed that clients do not “waive” the right to confidentiality. “[T]he proposition that a client unfamiliar with the Rules of Professional Conduct effectively provides informed consent to disclosure of confidential information by counsel in retaliation for the client having posted information online is a stretch too far,” it said in its response.

The LPRB also said that the proposed amendment purports to limit responses to a situation in which the accusation raises a substantial question as to the lawyer’s honesty, trustworthiness, or fitness as a lawyer, but “fitness” can be interpreted quite broadly. The proposed amendment would not allow disclosure of confidential information in response to “a petty or vague critique,” but there is no bright line dividing the areas and no clear direction to the bar or the LPRB, it said.

The court’s answer

The court, although it said it was sympathetic to the lawyer’s need to defend his or her reputation, did not see a need at this time to change the rule, at least in the way the MSBA proposed. It based its opinions on four grounds. The first was that the MSBA’s petition does not establish additional clarity is needed because lawyers now wrongly disclose information in response to social media comments.

It also said that the petition does not establish that lawyers are unable to fully or fairly respond to a client’s public comments because of the current language of the rule.

The court’s third reason was that even if the MSBA amendments were adopted, lawyers would not be authorized to disclose confidential client information in all circumstances as a response to a client’s public comments.

Fourth, the court said that the proposed amendment would introduce an additional exception to the otherwise general rule of client confidentiality, which could have unforeseen impacts on the lawyer-client relationship.

Proposed amendments to Rule 1.6(b)(8), Minnesota Rules of Professional Conduct

(Additions are underlined and deletions are in brackets.)

Rule 1.6(b) A lawyer may reveal information relating to the representation of a client if: …

(8) the lawyer reasonably believes the disclosure is necessary to respond to a client’s specific and public accusation, made outside a legal proceeding, of misconduct by the lawyer, where the accusation (a) raises a substantial question as to the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects and (b) includes the client’s disclosure of information or purported information related 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;

[(9) the lawyer reasonably believes the disclosure is necessary to establish a claim or defense in an actual or potential 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;]

(9) the lawyer reasonably believes the disclosure is necessary to establish a claim or defense by the lawyer in an actual or potential civil, criminal, or disciplinary proceeding 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;