Geoffrey Belzer – Professional Liability Advocate Tue, 07 May 2019 21:20:25 +0000 en-US hourly 1 Negative Online Reviews: The Best Defense /2016/06/negative-online-reviews-the-best-defense/ /2016/06/negative-online-reviews-the-best-defense/#respond Mon, 13 Jun 2016 20:08:56 +0000 Continue Reading…]]> WebA recent Washington Post article examined the issue of patient privacy complaints after medical providers responded to negative Yelp® reviews about medical care. The issue of how a professional can (or should) respond to negative online reviews is not limited to physicians or medical facilities. While attorneys are not subject to HIPAA, they are all well aware that attorney-client communications are privileged and confidential and only the client can waive that privilege.

In 2013, Illinois attorney Betty Tsamis was reprimanded by the Illinois Attorney Registration and Disciplinary Commission for responding to a negative Avvo review by a former client in a manner that publicly revealed confidential client information. Similarly, a public reprimand was issued against a Georgia attorney, Margrett Skinner, after she responded to a negative review by discussing details of her representation of her client in a domestic relations matter.

The Pennsylvania Bar Association considered the ethical rules governing attorneys in Formal Opinion 2014-200 and concluded that the best approach for an attorney confronted with a negative review would be to consider whether a response would call more attention to the review before responding. If the attorney decided to respond, Pennsylvania suggested an appropriate response would be “proportional and restrained” and included this suggested language:

A lawyer’s duty to keep client confidence has few exceptions and in 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.

In a similar vein, attorney Josh King, General Counsel for Avvo Inc., has suggested that attorneys consider negative online comments a marketing opportunity to demonstrate confidence in their abilities and that they care about client confidentiality concerns. For example, Mr. King suggests a professional could post the following:

We’re sorry you had a bad experience. We strive for the utmost in client satisfaction, and if there is anything we can do to make things right, contact me directly.

Regardless of the form you choose, the way to avoid posting a regrettable response to a negative review may be the simplest. First, take the time to think through whether you want to respond. Second, take the time to think through how you want to respond. Never respond rashly or out of anger.

One way to stay out of trouble is to print your proposed comment, stick an exhibit label on the corner of the document and ask yourself how you would react if it was later presented to you by a disciplinary board or at a deposition. If it makes you squirm, delete it before it sees the light of day. If your initial reaction is positive, go one step further and ask yourself whether the post presents you as you want to be seen by a potential client – as a professional who keeps client confidences and thinks before acting.

/2016/06/negative-online-reviews-the-best-defense/feed/ 0 The Proof Is in the Password! /2016/05/the-proof-is-in-the-password/ /2016/05/the-proof-is-in-the-password/#respond Wed, 04 May 2016 18:30:26 +0000 Continue Reading…]]> Login page

Consider this scenario: A young couple entrusts you, an experienced real estate attorney, to assist them in the purchase of their first home. Days before closing, your unsecured email account gets hacked and your client receives an email, which to all appearances is from you, telling them to wire funds to a third-party account instead of bringing the cash to closing. You only find out about “your” email to your client after the transfer has been made and your clients’ savings, accumulated over many years, is gone. What exactly do you think you can say to your clients to make it better?

This is not a fantasy – it happens far too often, as noted in a recent ABA Journal article. We, in fact, were involved on behalf of the depository bank in this exact situation in Illinois, where clients followed what they thought were the instructions of their attorney.

As a professional, you are required to keep abreast of changes in technology and to safeguard your client’s confidential information under ABA Model Rules 1.1 and 1.6. This standard of care must be taken seriously and the idea that “it won’t happen to me” is an insufficient defense. There are two immediate steps you can and should take to help prevent a foreseeable loss.

First, pick a “secure” password. You are putting yourself and your clients at risk if any of your passwords are like those on a GeekWire list. Second, if you have not enabled the security features on your mobile phone – even after all the media coverage of the federal government’s attempt to compel Apple to tell it how to unlock data on an iPhone – do so immediately.

The need to understand technology and enable a strong password to protect accounts is not limited to professionals. Consider the recent case of Laremy Tunsil , an NFL prospect who arguably lost more than $13 million because someone hacked his Twitter and Instagram accounts at the worst possible time, resulting in his precipitous drop in the NFL draft.

In our case, the attorney was able to avoid liability by spending a considerable amount of time chasing down his clients’ funds, which were traced to the hacker’s account and recovered. However, this only occurred after the attorney put his insurer on notice of a potential claim and six months of litigation.

Have you spent the time to think about whether you and your clients are up to date on the latest technology and know how to keep that technology secure? Have you spent the time and effort to fully safeguard your client’s confidential information on your computers? If you engage in social media, have you considered the implications of the strength or weakness of your password? The importance of thinking this issue through now – before a problem occurs – cannot be over-emphasized. Your electronic communications must be kept secure. If necessary, hire a consultant or adviser. The cost of preventing a data breach is money well spent.

We ask our readers to join in if they have questions or have dealt with this issue in the past.

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