It's Better to Remain Silent and be Thought a [Bad Lawyer] Than To Speak Online and Remove All Doubt

I am a bit late to report this, but in June 2023, the State Bar of Wisconsin Ethics Committee (on which I sit) released Formal Opinion EF-23-01, “Responding to Online Criticism.” In most cases, the Committee’s recommendation as to whether to respond to negative posts on social media or professional review sites is “don’t”:

Synopsis: A lawyer may not reveal information relating to the representation of a client in response to online criticism of the lawyer without the affected current, prospective or former client’s informed consent. A response to online criticism which reveals protected information is not permitted by the self-defense exception outlined in SCR 20:1.6(c)(4). In most instances, the committee believes that no response best serves both the interests of the client and the lawyer. However, should the lawyer decide to respond, they may not reveal protected information and should be restrained and proportional in their response. Suggested permissible responses are discussed at the end of this opinion.

This new opinion largely (but not entirely) tracks an my own thoughts from a couple of years back.

If lawyers do feel it necessary to respond, the Opinion suggests the following language: “I do not believe the [post/comments] are fair or accurate. Professional obligations prevent me from commenting further.” (One caveat: Ethics opinions are not binding on the Supreme Court, which ultimately imposes discipline, but are considered persuasive.)

Prior to (and in the absence of) the Wisconsin opinion, I had been suggesting Pennsylvania language (though with the caveat that in certain circumstances even this language could go too far in confirming that the complainer was a client), which by the letter of SCR 20:1.6 is not permitted:

A lawyer’s duty to keep client confidences has few exceptions and in an abundance of caution, I do not feel at liberty to respond in a point-by-point fashion in this forum. Suffice it to say that I do not believe that the post presents a fair and accurate picture of the events.

I continue to believe Wisconsin’s interpretation of 1.6 is too restrictive. Even if the attorney-client relationship is publicly known we’re not supposed to acknowledge it absent informed consent or implied authorization to carry out representation, which is contrary to how normal human behavior works. But it is what it is and I’m not going to recommend anyone try to become my test case.

Still, it many cases it may not be necessary or prudent to respond even with the new suggested language, so as to not draw unwanted attention to a comment that would otherwise disappear into the ether.