“It’s Groundhog Day… again.”

This past week included one of our nation’s most heralded fake holidays. Groundhog’s Day. Silly occasion, but still a really good movie, of course. But, playing off of the theme of repeating events and disappointing outcomes, we return to the oft-discussed topic of lawyers trying to respond to online criticism.

We’ve covered in the past in these parts that the current version of the ethics rules, in any jurisdiction using the ABA Model approach to RPC 1.6, prohibits lawyers from responding to online criticism posted by clients or former clients, even if the criticism is off base. We’ve also talked about the fact that if the criticism comes from someone who wasn’t actually a client, then the ethics rules do not prohibit a lawyer from going online to respond. We’ve also talked about how if the person is a client or former client and they lie about you online, that you could try to sue them for defamation. As to all of those approaches, we’ve also stressed that there are practical problems with doing some of the things that you could do, including The Streisand Effect.

What we’ve never directly addressed is the “could” or “should” of deciding to respond to online criticism from someone who was never a client or nonclient by deciding to file a lawsuit for defamation. This was an approach that an Illinois lawyer tried but was unsuccessful at the trial court level, having the claims dismissed as not actionable. Within the past week or so, the Seventh Circuit has now affirmed that dismissal. You can read the ABA Journal article about the ruling here. If you have more time to delve into the matter, you can read the full Seventh Circuit opinion here.

Interestingly, the underlying story is both one of a pretty unsympathetic character (the lawyer) and a story in which the lawyer stepped into puddles of his own making both in how he responded to initial online criticism and then in attempting to turn his situation into a federal case.

This lawyer’s tale of Internet woe starts, as many do, with a round of activity on Facebook. In response to the tantalizing “What’s on your mind, David?” that Facebook lays out to prompt users to post, this lawyer wrote: “Did Trump put Ukraine on the travel ban list?! We just cannot find a cleaning lady!” This initial statement was met with a good amount of negative feedback and criticism but limited to comments and replies in the Facebook thread itself.

The lawyer, however, proceeded to — in the words of the Seventh Circuit “double down” by responding in his comments thread with:

My business with Ukrainians will be done when they stop declaring bankruptcies. If this offends
your national pride, I suggest you look for underlying causes of why 9 out of 10 cleaning ladies we’ve had were Ukrainian and 9 out of 10 of my law school professors were not. Until then, if you don’t have a recommendation for a cleaning lady, feel free to take your comments somewhere else.

Now, the problems with this approach are varied, but they include the invitation to folks to branch out with where they provided their feedback. And branch out they did. The lawsuit explains that the people he offended with his anti-Ukrainian sentiments proceeded to the lawyer’s law firm Facebook page, his Google listing, and to Yelp to offer their opinions. The various statements ran the gamut from just 1-star reviews without comment, comments about the lawyer generally as a person, and some comments that negatively characterized his ability to be a lawyer since he was seen as being inappropriately prejudiced.

The lawyer filed a lawsuit in federal court for defamation against these posters and claiming a civil conspiracy. The opinion lays out examples of posts of the vaguer variety and those of a more specific variety, but, importantly, it does not appear that anyone he sued posted a statement that was clearly capable of being read as falsely indicating that the person had ever hired the lawyer and was commenting about something specific. Just about the closest any statements came to that was someone posting a 1-star review with the only feedback indicated being “awful customer service.” The courts at both levels were entirely unconvinced that anything that written online was something other than an unactionable expression of opinion.

Perhaps, best summarized in terms of the view of that particular court, and as food for thought for attorneys anytime they contemplate suing in similar circumstances, is this excerpt:

More fundamental, we must consider the particular social context of these online reviews and what it may signal about their contents. The defendants posted their reviews on Freydin’s Law Office’s Facebook, Yelp, and Google pages, which invite unfiltered comments. We trust that readers of online reviews are skeptical about what they read, both positive and negative. But it is enough in this case that these short reviews did not purport to provide any factual foundation and were clearly meant to express the opinions of the defendants in response to Freydin’s insults to Ukrainians generally.

Illinois, apparently, does not have any anti-SLAPP mechanism’s, or, if it does, they were not taken advantage of here, but in any state that does, this kind of lawsuit by a lawyer would likely face that additional hurdle as well.

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