Social liability: Lawyers face online risks

Catherine Sanders Reach. - Rena Naltsas
Catherine Sanders Reach. —Photo by Rena Naltsas
September 2016
By Lauren P. Duncan
Chicago Lawyer correspondent

They say nothing is more valuable to a lawyer than his or her reputation.

Regardless of whether that’s a universal truth, some attorneys will testify to the frustration they feel when online commentators use the internet to tear into them, airing grievances that only recently could be viewed by the public with a few strokes on the keyboard.

In a world where many industries and professions are embracing social media platforms and using them as tools to grow or even launch their brands, social sites are also used on the flip side as a place where ex-customers or ex-clients can make their complaints widely known. That fact alone has some attorneys less-than-impressed with the way grievances can be posted instantly.

Just ask divorce attorney Enrico Mirabelli with Beermann Pritikin Mirabelli Swerdlove.

Mirabelli is quick to convey his displeasure with the fact that there are YouTube videos out there alleging he deliberately lost his client’s case, lied and was involved in corruption, among many other accusations.

The videos were posted by his former client, Robert Skertich, in 2012 and 2014. Skertich posted the videos after his divorce case and a separate case in which he was represented by Mirabelli didn’t end in his favor. He claims in one video that he lost $4 million in the divorce as a result of Mirabelli’s representation.

Mirabelli admits Skertich didn’t get the result he was hoping for in his divorce case but contends it was not his fault. Mirabelli called the judge’s ruling unfair.

Skertich went on to file a complaint with the Illinois Attorney Registration & Disciplinary Commission, but it never went anywhere. He also attempted to sue Mirabelli for legal malpractice, but the case was thrown out.

Skertich says he didn’t want to post the videos to hurt Mirabelli’s business, but rather he says it was an attempt to “hopefully find other people who were in the same situation.” He says he received two calls as a result of the videos.

For many attorneys, like Mirabelli, what’s almost as (if not more) frustrating than the reviews in general is the lack of options available to attorneys to defend themselves against online attacks.

But some professional advisers say there are more attorneys today who are taking action to protect their reputations online — through litigation and an open embrace of social media.

Mirabelli weighed what he could do in response to the videos, which YouTube isn’t required to take down without a court order. He considered posting his own video in response, or even suing Skertich. But, ultimately, he decided neither option was worth his time, he says.

Instead — for now at least — Mirabelli has decided to leave it be. But that doesn’t mean he’s forgotten the videos are out there.

“How do you fight back? You turn the social media cheek and move on,” he says. “That’s how I’ve dealt with it … There’s just no upside to suing your former client for defamation because it’s just a drain on your resources.”

A higher standard

While lawyers aren’t the only group of professionals susceptible to the sometimes distressing transparency for which social media has set a stage, they are subject to their own special code of good behavior: the Rules of Professional Conduct issued by the Illinois Supreme Court. In a sense, those rules can hold the attorney to a higher social and professional standard than others.

Most non-lawyers can respond to a disparaging remark online in the simplest way: a comment in reply. This method might come with its own risks, such as igniting a heated back-and-forth in a public forum. For most people, however, it doesn’t come with the risk of facing formal discipline or censure.

While it’s not a frequent occurrence, there have been instances of attorneys being disciplined for their responses to former clients’ online posts. Some of the most frequently referenced cases of attorneys who have been called out for their responses to online posts merely faced slaps on the wrist.

The possibility of getting a mark on an attorney’s record, though, is enough that the topic of responding to negative criticism is becoming a recurrent subject at ethics workshops around the country.

One of the examples used in such workshops is that of Illinois attorney Betty Tsamis, who was reprimanded by an ARDC Hearing Board in 2014 after she divulged confidential client information in response to a negative post on Avvo. In the post, Tsamis allegedly made a statement that divulged information about her client, including that her client had allegedly been involved in “beating up a female co-worker.”

Tsamis was reprimanded, in part, for revealing the confidential information about her client in a public forum. She was called out for violating the Illinois Rules of Professional Conduct.

Rule 1.6 in the professionalism code spells out attorney-client privilege. Not only is it a rule that guards the lawyer’s real-life relationship with a client, but the responsibilities carry over online.

Some social media-savvy advisers say that’s something attorneys must not forget.

“The bottom line is, lawyers have an obligation under [Rule] 1.6 to maintain the confidentiality of information that’s provided by a client, and I think sometimes we don’t realize, or in the heat of the moment we don’t think about the fact that 1.6 applies to anything from any source you learn about a client during the course of a representation,” says Steven Puiszis of Hinshaw & Culbertson.

“So the duty of confidentially is extremely broad and it survives the termination of the attorney-client relationship. It doesn’t just magically disappear when an engagement ends or when litigation is over. It’s something I think lawyers have to understand and recognize.”

Puiszis notes there are some exceptions. For example, if an attorney is being sued by a former client, the lawyer can use the confidential information to defend himself under certain circumstances.

But, in general, an attorney must tiptoe around what he or she does in response to an online commentator, at least when it comes to replying to a post. In some cases, certain websites offer steps individuals can take to have a post removed, but in most instances, the attorney must be able to prove the post is defamatory, which Puiszis notes can be difficult.

“The unfortunate reality is there’s not a lot lawyers can do from an ethical perspective when confronted with this situation,” he says. “You can try to have it taken down, but you may not be successful.”

Setting up an offense

Catherine Sanders Reach, the director of law practice management and technology for The Chicago Bar Association, keeps a close eye on all things related to lawyers and social media. She’s catalogued “reams of articles” related to online defamation and social media incidents involving attorneys, which are useful materials for her Continuing Legal Education program on online reputation management.

Throughout her research, Reach has found some instances in which attorneys have been successful in winning defamation lawsuits, but they are few and far between.

One such case was when an Florida appellate court in January awarded $350,000 to Florida divorce attorney Ann-Marie Giustibelli after a client allegedly defamed her on Avvo. In another case in June, a California court ordered Yelp to take down an allegedly defamatory review of a law firm, Hassell Law Group.

The outcome of another more recent case remains to be seen. In July, a Houston-area law office, the Law Offices of Tuan A. Khuu and Associates, filed a lawsuit against a former client, a 20-year-old waitress, alleging she defamed the firm on Yelp and Facebook.

“Taking someone to court is probably the last thing you want to do,” Reach says. “There’s definitely been some awards. Basically, I’m gathering, if you can win, you can have the court then force the company that has the review online to have it taken down, but you can’t go to Yelp and say ‘take it down.’ They won’t unless the court tells them to.”

While rules surrounding attorney conduct carry over online, Reach doesn’t think lawyers should simply ignore their negative reviews. Like a restaurant that responds to a poor review with an understanding and apologetic reply, Reach says attorneys too can attempt to improve their tarnished reputations by responding to reviews professionally and empathetically.

She suggests attorneys respond with an apology that runs along the lines of “We’re sorry you had a bad experience with our firm” and ask the commentator to contact the firm directly to attempt to rectify the situation.

Beyond that, though, Reach doesn’t recommend attorneys get too detailed in their responses.

“You can respond and probably should respond to negative reviews. You have to be very careful,” Reach says. “There are a lot of ethics opinions on this. California says to respond, that they should be proportionate and restrained. Josh King (an attorney) from Avvo says the trick is to not get defensive or petty.”

“Then you’re online, appearing to be responsive, apologetic and appearing to solve the problem … that’s probably the best way to deal with this,” she says.

Reach advocates for a proactive approach to social media before a bad review appears. She encourages lawyers to first accept the fact that their information is publicly available online and second to Google themselves to see where their information can be found.

From there, she says lawyers should do whatever they can to embrace social media and shape their own online media presences, which can range from claiming their Avvo profiles and making it more personalized to encouraging happy clients to post a positive review of them. Essentially, she says, “the best defense is a good offense.”

For those who are weary of social media, it can be difficult to fully embrace it, Reach acknowledges. She says she’s met with some attorneys who weren’t aware they had online profiles.

But social media as a public forum isn’t something that will go away.

“We can’t put the genie back in the bottle. Yes, it has caused problems for attorneys and it’s a whole new world of things they have to deal with,” Reach says. “We’re not going to go backwards from this. We’re going forwards and you’re going to have to embrace this reality, but you’re going to have to understand the system and work within the system.”

And if an attorney has a lot of negative reviews out there, she says that individual might want to evaluate their practices.

“If you’ve got a whole lot of bad reviews, maybe you need to rethink some things,” Reach says.

Reach isn’t alone among those attempting to get Chicago attorneys onboard the social media bandwagon. Mark Palmer, professionalism counsel for the Illinois Supreme Court Commission on Professionalism, likewise says the issue of social media and attorney reputations is going to remain a concern in the legal field.

“This is not going away, as technology is certainly not going away,” Palmer says. “Aside from the rules, there’s always a need to be professional and civil and carry that forth as attorneys. You’re going to have that same mentality whether you’re in public or an online space. Constantly remember — that’s going to be out there for almost eternity. It’s a bell that’s hard to unring.”

Palmer cites three options for attorneys who are displeased with a review: Ignore it, report it (if it’s malicious or defamatory) or reply to it.

“That’s the hard one,” Palmer says. “Of course, lawyers should be cautious when they do choose to respond. It should be brief and be extremely mindful that it wouldn’t violate confidences.”

Going forward, Palmer predicts even more online sites that cater toward the legal professional will be created, which will provide attorneys and clients with a wider field to advertise services and share opinions.

“We’re on the beginning cusp of this,” Palmer says. “There are going to be new companies and new Avvos in the future that are going to have different ways to deliver and lawyers are going to need to know how to respond to what they are, both within the rules of what they can do and in the professional aspect of what they should do.”

Guarding reputations

Although it likely only takes one negative review to rattle an attorney’s nerves, a majority of the reviews on Avvo are positive, according to Avvo’s Josh King, chief legal counselor with the Seattle-based company.

“We have hundreds of thousands of reviews, but they tend to run about 80 percent positive,” King says. “And we have a moderation process. We actually look at the reviews before they get posted, so the really crazy stuff never sees the light of day.”

Requests for how posts or reviews may be considered for removal vary from site to site. At Avvo, King says the policy is to immediately remove a post once an attorney complains.

“If an attorney disputes a review, or they tell us they think it’s fake, we’ll take it down and send it to the reviewer and say it’s been challenged, and we only repost it if the reviewer affirms it,” he says.

But Avvo does not delete profiles, and if the reviewer affirms the comment, it’s there to stay, King says.

With around 80 million visits to the website each month, King is quick to promote his company’s site as a place for attorneys to build their client base. The site boasts listings of about 1.4 million attorneys.

Only about 250,000 of those profiles are actually “claimed” — an option that attorneys can use to personalize their profiles.

In general, King says he thinks attorneys are becoming more social media savvy. While he recognizes that some attorneys are afraid of negative reviews, King says he thinks they’re inevitable when it comes to a field that involves working closely with people.

“If you’re dealing with consumers and you don’t have a negative review yet,” he says, “it’s really just a matter of time, because there are people out there whose expectations cannot be met.”