Duty of Confidentiality in Correcting Client Statements
Confidentiality, ConflictsMost lawyers generally understand their duty of confidentiality. And yet, the duty of confidentiality is a common pitfall for many attorneys. Often there are competing forces at play–the attorney’s duty to preserve confidential information relating to a client’s representation pursuant to Rule 1.05 of the Texas Disciplinary Rules of Professional Conduct (“Texas Rules”), protection of the attorney’s professional reputation and avoiding the threat of sanctions, just to name a few. For example, what if your client lies in a deposition? Can you respond to negative criticism from a client (or non-client)? If so, what type of response is permissible? In this Article, we summarize ethics opinions from the Texas Ethics Committee and the American Bar Association that provide guidance as to how to navigate these waters.
CLIENT LIES DURING DEPOSITION
Your client just lied in a deposition. What do you do? In Texas Ethics Opinion 692, the Professional Ethics Committee for the State Bar of Texas (“Texas Ethics Committee”) acknowledged that the scenario “present[s] very difficult issues,” citing the tension between a lawyer’s duty of candor to the court and the duties of loyalty and confidentiality to the client.
The attorney represented the defendant in a dispute arising from a car crash. Whether the defendant-driver was looking at his cellphone at the time of the accident was a key issue in the case. Prior to the deposition, the defendant admitted to his attorney that he had been looking down at his phone, but argued that the plaintiff’s erratic driving was what had caused the crash. In preparation for the deposition, the defendant’s attorney counseled his client to testify truthfully. The defendant agreed. During the deposition, however, the defendant denied that he was looking at his phone at the time of the accident. During a break, the defendant’s lawyer advised the client to correct the false testimony but the client refused. When the plaintiff’s lawyer passed the witness, the defendant’s lawyer declined to ask any questions.
The Texas Ethics Committee focused on Rule 3.03 of the Texas Rules, which requires candor toward the tribunal, and Comment 13 to that rule, which addresses false evidence that is not introduced by the lawyer:
A lawyer may have introduced the testimony of a client or other witness who testified truthfully under direct examination, but who offered false testimony or other evidence during examination by another party. Although the lawyer should urge that the false evidence be corrected or withdrawn, the full range of obligation imposed by paragraphs (a)(5) and (b) of this Rule do not apply to such situations. A subsequent use of that false testimony or other evidence by the lawyer in support of the client’s case, however, would violate paragraph (a)(5).
Unlike Rule 3.03(b) where the attorney has unknowingly offered the false evidence, Comment 13 does not require an attorney to take “reasonable remedial measures.” The important distinction in this fact pattern is that the client lied while being cross-examined by opposing counsel during a deposition.
While not required to take “reasonable remedial measures” in such a scenario, the expectation is that the attorney will counsel his client to correct his testimony. Once done, that ends the attorney’s ethical obligation. That said, the attorney is prohibited from using the false deposition testimony.
As Ethics opinion 692 concludes:
Under the Texas Disciplinary Rules of Professional Conduct, a lawyer does not have a duty to correct intentionally false statements made by the client while being cross-examined by the opposing party’s counsel during a deposition. Nevertheless, the lawyer should urge the client to correct the false statements, including by explaining the potential civil and criminal ramifications of false testimony. If the client refuses, the lawyer may (but is not required to) withdraw from the client representation if permitted by the Rules. If the lawyer does not withdraw, the lawyer is not required to disclose the true facts but may not use the false deposition testimony in any way to advance the client’s case.
ONLINE COMMENTS
Like any provider of goods or services, lawyers are subject to negative reviews and online criticism. May a lawyer respond to a former client’s negative comments posted online? What about comments from individuals who are not current or former clients?
Texas Ethics Opinion 662
In Texas Ethics Opinion 662, the Texas Ethics Committee addressed whether an attorney may respond to a former client’s negative comments posted online. Under Rule 1.05 confidential information is broadly defined to include, “all information relating to a client or furnished by the client, other than privileged information, acquired by the lawyer during the course of or by reason of the representation of the client.” And an attorney is prohibited from publicly revealing confidential information of a former client unless expressly permitted by an exception stated in Rule 1.05.
In short, the Texas Ethics Committee found that an attorney may post a “proportional and restrained response” provided that no confidential information is revealed.
Absent an applicable exception found in Rule 1.05, a lawyer may not post a response to a negative review that reveals any information protected by the lawyer-client privilege, or otherwise relating to a client or furnished by the client, or acquired by the lawyer during course of or by reason of the representation of the client. This is true even though the information may have become generally known.
The Opinion also included a model response, suggested in Pennsylvania Bar Association Formal Ethics Opinion 2014-200 (2014), that would not violate the Texas Disciplinary Rules:
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.
What if a current or former client writes a positive review but it includes inaccurate statements? In Texas Opinion 685, the Committee considered whether lawyers may encourage current and former clients to post positive reviews or comments and favorable “star” ratings online. The Texas Ethics Committee opined that lawyers may encourage current and former clients to post positive reviews or comments and favorable “star” ratings online, provided that the client’s statement was not false, misleading or unfounded.
The Committee declined to not opine as to whether a lawyer has an affirmative duty to monitor websites, social media platforms, or similar sites for false, misleading or unfounded statements. If, however, a lawyer becomes aware that a client made a favorable false or misleading statement or statement was unfounded, the lawyer should take “reasonable steps” to ensure such statements are corrected or removed.
If the lawyer controls the content of the website or platform where the inaccurate information is located, the lawyer has an affirmative obligation either to encourage the author to correct the statement or to remove the statement entirely. If the lawyer does not control the website or platform and cannot remove the statement, the lawyer should consider making a curative comment on the website/social media platform or seek removal from the platform’s administrator. Either way, the lawyer must take care not violate her duty of confidentiality under Rule 1.05.
Another question is how to respond to negative online reviews posted by those who are not current or former clients. While an attorney does not owe any ethical duty to a person who is not a client or former client who posted a negative review, the Opinion underscored the importance of using caution in responding to such posts:
If the negative commentary is by a former opposing party or opposing counsel, or a former client’s friend or family member, and relates to an actual representation, the lawyer may not disclose any information relating to the client or former client’s representation without the client or former client’s informed consent. Even a general disclaimer that the events are not accurately portrayed may reveal that the lawyer was involved in the events mentioned, which could disclose confidential client information. The lawyer is free to seek informed consent of the client or former client to respond, particularly where responding might be in the client or former client’s best interests. In doing so, it would be prudent to discuss the proposed content of the response with the client or former client.
CONCLUSION
The fact patterns in these ethics opinions are not uncommon and illustrate how an attorney’s ethical obligations can be at odds with one another, or with the desire to preserve one’s professional reputation. If you’re unsure how to navigate an ethical dilemma, TLIE is here to help.
