Negative Online Reviews

We all know that negative online reviews can be hurtful and maddening.  Last month I highlighted suggestions from the July Oregon State Bar Bulletin article by Linn Davis, with a few additions of my own.  Because I know this topic strikes a nerve, I wanted to share some further advice from our friends at NW Sidebar.

  • A reasonable and measured response is key. Blasting people who give you a negative review is not a good business model. You can try contacting the review site and asking for the review’s removal if you can prove the review is false, defamatory or written by a competitor. This, however, may not be successful, especially if the review is anonymous. See Thomson v. Jane Doe, 189 Wn. App. 45, 356 P.3d 727 (2015) , when the court refused to force disclosure of an anonymous online reviewer’s identity.
  • You can respond directly to the review on the site. Be courteous and explain that due to your duty of confidentiality, you can’t address the facts of the complaint, but that you do not believe it presents a fair and accurate portrayal of the events. Make clear that you are always available to meet with former clients and address any concerns they may have.
  • If possible, try to contact the reviewer directly and seek to ameliorate the situation or explain to them further why the representation unfolded as it did. If this is successful, don’t hesitate to ask for an updated review.
  • Try to avoid further negative reviews by soliciting client feedback directly as the representation continues and in exit interviews. Try to give your clients every opportunity to air their grievances with you and your firm directly so they don’t have the need to vent in public.
  • Lastly, the best antidote to a negative review is positive reviews. Keep your profile updated and facilitate the opportunity for your other clients to post their own satisfied reviews.

via Responding to Negative Online Reviews — NWSidebar

As I’ve said before, I am not a fan of engaging with the reviewer/client online.  However, the idea of soliciting client feedback during and after the course of representation is stellar.  As Sandra Schilling notes, this is about giving your clients the opportunity to vent so they don’t feel the need to blast you online.  I would add: it may also be preemptive. While there will always be clients who are perpetually unhappy, most people are reasonable.  If you learn about a client’s dissatisfaction early, you can intervene and repair the relationship.  The unappealing alternative is to allow the client’s bad feelings to fester – never a good solution.

All Rights Reserved 2017 Beverly Michaelis

Attorney-Client Privilege and Cloud Storage

Do your clients or their agents use cloud storage for case-related documents?  Do they transmit information using unsecured hyperlinks?

If the answer is yes, your client may have waived its claim of privilege to the stored information. This is the lesson learned in Harleysville, where a federal court in Virginia held that an insurance company waived the attorney-client privilege when the insurer’s investigator used an unsecured account to share claim-related information.

Key Facts in Harleysville

  • Insurer’s counsel knew or should have known that the information posted to the cloud account was publicly available because counsel had themselves used the unsecured hyperlink to access and download the claims file.
  • As a result, counsel “failed to take reasonable measures to ensure and maintain the document[s’] confidentiality, or to take prompt and reasonable steps to rectify the error.”
  • The court analogized the insurer’s actions to “leaving its claims file on a bench in the public square” and warned that if a company chooses to use a new technology, “it should be responsible for ensuring that its employees and agents understand how the technology works, and, more importantly, whether the technology allows unwanted access by others to its confidential information.”

Source: Don’t Let New Technology Cloud Your Legal JudgmentProskauer commercial litigation blog.

Lessons Learned

As Proskauer points out:

  • Attorneys and clients are responsible for their own technological choices as well as those of the client’s agents
  • Technological ignorance on the law firm’s part is no excuse

What You Should Do Now

  • Conduct a cyber security audit of your firm’s practices and systems.
  • Establish a secure system for confidential file sharing if one is not already in place. Address other issues uncovered during the security audit.
  • Create file sharing policies and procedures.
  • Train everyone now; conduct annual training sessions thereafter.  Address protocols for uploading and downloading files.  All law firm members – attorneys, staff, administration, bookkeeping – need to know the warning signs of receiving or forwarding content from unsecured hyperlinks.
  • Talk to clients about file storage and sharing practices.  Do they use agents, like the investigator in Harleysville?  If so, how do they exchange documents? Consider offering an on-site client training lunch to go over dos and don’ts.

All Rights Reserved 2017 Beverly Michaelis

 

 

Your Online Reputation

The July issue of the Oregon State Bar Bulletin features an excellent article by Linn Davis entitled “Responding to Negative Online Reviews: Reputation Management.”  If you’ve ever received a negative review, or fear that negative content is inevitable, this post is for you.

While Davis’ article focuses on ethical dos and don’ts, it also contains solid practical advice.  The following excerpt describes what you cannot do, what you should not do, how to preempt negative reviews, and how to respond to a negative review. Also included are my two cents on best practice recommendations.

What You Cannot Do

  • Reveal information relating to the representation of a client
  • Post inaccurate content
  • Allow misleading information that creates false expectations regarding fees, results, or your firm’s resources
  • Use subterfuge (employees posing as satisfied clients offering glowing reviews)
  • Fail to promptly update information when it changes
  • Engage in real-time interactions that violate in-person solicitation rules

What You Should Not Do

  • Sue the source of the negative review for defamation
  • Attempt to restrict clients from posting negative reviews
  • Form an unintended attorney-client relationship in an online legal forum
  • Fail to screen for conflicts in an online legal forum
  • Offer incentives for a positive review without considering the ethical and legal implications. See Oregon RPC 1.8(a), and 16 CFR Part 255 relating to FTC regulation of endorsements.

How to Preempt Negative Reviews

  • Contribute accurate and valuable information regarding yourself and your firm
  • Use disclaimers when participating in online legal forums
  • Provide clients with professional and competent work product

How to Respond to a Negative Review

One possibility is to do nothing.  As Davis points out, “not every opinion (on the Internet) must be contested.”  If, however, you feel you must respond, Davis offers three ethically permissible approaches:

  • Encourage the client to contact you to resolve the concerns expressed (this could be done online or offline)
  • Post that you disagree with the client’s account but are prevented by your professional standards from responding in a public forum without the client’s consent
  • Direct readers to other forums where your representation is regarded more “fully, accurately, and favorably”

Best Practices – My Two Cents

If the negative review comes from a client:

Your best tactic is to encourage the client to contact you. I suggest doing this privately and leaving the online post alone.  Why?  Responding to a negative review in any fashion will cause it to rank higher in search results.  Remember: search engines use algorithms based on quantity and quality. The more online engagement surrounding a negative thread, the more prominent it will become.

The good news is that you can exploit the quantity/quality preference of search engines by contributing your own accurate and valuable information.  In addition to Davis’ suggestions about adding basic biographical data and a description of your services, list yourself on free online legal directories, blog, update your Website, post to social media, share photos, and reshare/repost content.  It will take time and effort, but your content can and will push the negative review below the first page of search results.

If the negative review comes from a non-client:

I’ve known many lawyers who received negative “reviews” from non-clients – either disgruntled opposing parties or those who are motivated to attack the lawyer because of her practice area or representation of a particular client. Examples include immigration law, debt collection, or defending a client accused of a crime. Other than overwhelming the negative review with your own positive content, there isn’t much you can do when a non-client complains. Responding will only spur on the commentor.

Parting Thoughts

While it is important to monitor what people are saying about you online, try to have a thick skin. I know that negative reviews can be hurtful and maddening – especially when the source is motivated to keep attacking.  However, and pardon my French, but most of us can spot a “whack job.” Therefore, if a potential client decides not to meet with you because of what he sees or reads on the Internet, it’s probably a good thing.

All Rights Reserved Beverly Michaelis 2017

Last Call: Ethical Guidelines for Client Files – June 7, 2017 CLE

Don’t miss “Ethical Guidelines for Client Files” on June 7, 2017.  Learn about OSB Formal Ethics Opinions 2016-191 – Client Property: Electronic-Only or “Paperless” Client Documents and 2017-192 – Client Property: Duplication Charges for Client Files, Production or Withholding of Client Files.

What are lawyers required to produce and when?

  • In some cases, lawyer notes and communications must be produced, in other instances they can be withheld: do you know the difference?
  • If you store data in proprietary law office software (e.g. in a docketing or practice management program), must you extract and convert the data for the client?
  • What circumstance might provoke disclosure of “confidential” information belonging to another client?
  • Can you refuse to deliver file material on the grounds that it is too burdensome or expensive to produce?
  • Is it possible to deliver less than the “entire client file” if the client consents?
  • Are you required to produce work product? Conflict information? Time and expense records? Reports about the client’s creditworthiness? Expert witness information? Metadata? Text messages?

Standards governing retention and storage of client files – Is it ethical to store client files electronically? Do any exceptions apply? What duties does a lawyer have when using electronic-only storage?

When to charge for locating, segregating, or duplicating file material – When you can (and can’t) pass costs on to the client, whether client originals can ever be destroyed, and your ethical responsibilities to the “impecunious client.”

Appreciate the difference between ethical duties and discoverability – The interplay of the Oregon Rules of Professional Conduct vs. state and federal rules of civil procedure.

Throughout the program “best practice” tips will be shared.

Date/Time/Location

Wednesday, June 7, 2017 from 10:00 a.m. to 11:30 a.m. Pacific Time.  This is a live, online webinar. Watch from your desktop computer or mobile device. Connect to audio via telephone or computer/device speakers.

Who Should Attend?

Lawyers, office managers or administrators, staff – anyone interested in learning more about Oregon’s new formal ethics opinions, 2016-191 and 2017-192.

Does the Program Include Written Materials?

Yes.  Written materials will be distributed electronically to all registered attendees before the event.

Ask Questions/Participate in Live Polling

Questions are welcome during the live event.  Attendees are also encouraged to participate in live, anonymous polling.

Registration Fee

$25 – Visit the Upcoming CLE page or click here, or choose the Register button below. Secure payment processing powered by Eventbrite. Visa, MasterCard, Discover, and American Express accepted. Program materials included in the registration price.

Eventbrite - Ethical Guidelines for Client Files

MCLE Credits
1.5 Ethics MCLE Credits pending.

Can’t Attend?

Video and audio recordings of Ethical Guidelines for Client Files will be available to download along with the program materials following the June 7 CLE. Price: $25. Contact me or visit my online CLE store after June 7.

All Rights Reserved [2017] Beverly Michaelis

A New Ethics Standard for Client Email?

A long time ago, in a galaxy far, far away the ABA issued Formal Ethics Opinion 99-413, the gist of which was to give law firms a free pass when it came to email encryption. Since 1999, technology has evolved by leaps and bounds, the ABA has updated its model rules, and cybersecurity is a national concern.  Therefore, it should be no surprise the ABA chose to revisit its 18 year-old position on email and electronic communications.

The New ABA Standard

Is email encryption required by the new ABA opinion?  Yes and no.

As Bob Ambrogi reports in his blog:

In this new opinion, the committee declined to draw a bright line as to when encryption is required or as to the other security measures lawyers should take. Instead, the committee recommended that lawyers undergo a “fact-based analysis” that includes evaluating factors such as:

  • The sensitivity of the information.
  • The likelihood of disclosure if additional safeguards are not employed.
  • The cost of employing additional safeguards.
  • The difficulty of implementing the safeguards.
  • The extent to which the safeguards adversely affect the lawyer’s ability to represent clients (e.g., by making a device or important piece of software excessively difficult to use).

However, special security precautions may be required “to protect against the inadvertent or unauthorized disclosure of client information when required by an agreement with the client or by law, or when the nature of the information requires a higher degree of security.” ABA Formal Opinion 477.

The Oregon Standard

The last bit of ABA Formal Opinion 477 may sound familiar to Oregon lawyers.  In this article written by Helen Hierschbiel in 2010, the bar gave us some insight on the topic of electronic communications, including email:

Although use of electronic communications is not a per se violation of the duty of confidentiality, special precautions may be necessary in particular circumstances. For example, if information is particularly sensitive or subject to a confidentiality agreement, a lawyer may need to implement special security measures. Also, if a client requests it, a lawyer may be required to avoid, or be allowed to use, a particular type of electronic communication notwithstanding expectations of privacy in the communication method.

While the article cites to a model rule that was later amended, the parallels between Hierschbiel’s language and that of the new opinion are hard to miss.  Bottom line? Email encryption is required if the circumstances warrant it.

Choosing an Email Encryption App

Fortunately, Bob Ambrogi has come to our rescue yet again.  In his article, Encryption so Easy a Lawyer Can Do It, Bob discusses three incredibly simple solutions that allow lawyers to send encrypted messages.  No more clunky interface requiring the sender to transmit keys before the recipient decrypts the message.  No more need for both parties to use the same software.  (Although a simple plug-in may be needed, depending on the software you choose.)

With secure cloud-based solutions Enlocked, Virtru, or Delivery Trust, Ambrogi concludes:

What all three programs have in common is that they make encryption as easy as the push of a button.  If you use email to communicate with clients or colleagues about sensitive matters – and what lawyer does not? – you have no excuse not to encrypt.

What To Do Next

  • Encrypt all client email, not some client email.  Why?  Mainly to eliminate guesswork, reduce risk, and preserve your sanity.  Not convinced?  Consider how clients might view on again/off again encryption: some messages are worth protecting and other’s aren’t?  Hmmm….
  • Put sensitive content behind a secure client portal.  Many practice management programs have this functionality, but if yours doesn’t, consider Slack.
  • Discuss electronic communication policies with clients and reiterate them in your fee agreement or engagement letter.

All Rights Reserved Beverly Michaelis 2017