Lawyer Refuses To Take Client Criticism On The Internet, Earns 18-Month Suspension

Here's one for the bar exam: don't use client confidences to badmouth them in public just because they didn't like you on Yelp.

Longtime readers know my affinity for the classic, recurring Dave Chappelle segment When “Keeping It Real” Goes Wrong. There are just times in life where refusing to let go can land someone in a lot more trouble than it’s worth.

This is one of those stories. Colorado attorney James C. Underhill Jr. had a fee dispute with one of his clients. As reported in the Lawyer Ethics Alert Blogs:

In the first matter, a married couple retained the lawyer to assist with the husband’s ongoing post-dissolution dispute with his former spouse. The clients could not pay all the fees up and the lawyer verbally agreed to monthly payments, with an initial $1,000.00 deposit; however, “he did not explain that he reserved the right to demand full payment at his sole discretion. He collected an additional $200.00 for a ‘filing fee,’ though he took no action that required such a fee.”

Ultimately, Underhill threatened to withdraw unless the clients made full payment of all fees. This prompted the clients to dump him and move on… but not before penning negative reviews of Underhill on a pair of websites.

At this point, Underhill had a few options: he could ignore the criticism or, perhaps, contact clients with more positive experiences and encourage them to share those to drown out the negative reviews. But James Underhill decided to “Keep It Real.”

Armed with private, confidential information provided over the course of the representation, Underhill wrote “internet postings that publicly shamed the couple.” Then, apparently dissatisfied with his form of self-help, Underhill sued the couple for defamation (and chalked up more eventual problems for himself by constantly communicating directly with the couple rather than through their lawyer) and when this lawsuit was dismissed, Underhill decided to become collaterally real and “brought a second defamation action in a different court, alleging without adequate factual basis that the couple had made other defamatory internet postings,” in violation of “Colo. RPC 3.1 (a lawyer shall not bring a proceeding unless there is a basis in fact for doing so that is not frivolous) and Colo. RPC 8.4(d) (a lawyer shall not engage in conduct that prejudices the administration of justice).”

And lest you see this as a unique incident, the decision outlines a second client couple who crossed Underhill online eliciting this response:

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Underhill publicly replied by publishing an attorney-client communication on the internet and making uncomplimentary observations about and accusations against the couple based on confidential information related to the representation.

But alas no defamation suit. Yet.

Obviously, Underhill did not secure permission to disclose client confidences and should be punished, but beyond the specifics of his case, the matter does highlight the rapid advance of technology all over the codes of conduct we draft for our profession. After all, client confidences may be disclosed to combat a complaint to the state bar. Which makes sense, because lawyers must be able to protect their reputations and professional licenses from attack by an unscrupulous client looking to get out of a bill by bad-mouthing a lawyer. But while 30 years ago, lodging a complaint with the bar — and facing their own confidences raised as a defense — was the only recourse for a disgruntled client, now they can wreck havoc on an attorney’s livelihood by slapping together a mean-spirited review and throwing it up on one of the various ratings sites that potential clients use to find their counsel. This trolling is the new bar complaint, yet lawyers enjoy none of the implied, even informal safeguards they did when disciplinary committees functionally closed the process from unfiltered public view.

This conflict, between public yet anarchic and semi-private yet governed discipline formed the crux of the Deborah Thomson matter, where the Tampa-based attorney sought identifying details of an anonymous Avvo reviewer accusing her of breaching her fiduciary duties. The court, citing First Amendment concerns, ruled that Thomson could not access that information absent more compelling evidence supporting a defamation claim, which is the right answer given the current state of the law. But as with Underhill, the rules governing attorney behavior and discipline were written in a world where lawyers could only be disciplined when openly confronted by their clients. Is there a new path that the profession should explore — perhaps some mechanism by which lawyers could privately challenge specious commentary and combat negative reviews with official statements clearing the lawyer based on private inquiry? Is there any alternative that can recognize the changing technological landscape to both protect the Thomsons of the world from the anonymous and to provide some — ethically sound — respite for lawyers like Underhill?

Or maybe not exactly like Underhill, since his new 18-month suspension can’t start until he finishes his prior suspension of 3 months and one day for communicating directly with former clients represented by counsel while on disciplinary probation. And we shouldn’t forget that he’s already previously been suspended in 2012 for trust account violations. So let’s just say someone unlike Underhill wrongfully attacked in public forum by a former client.

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Meanwhile, Underhill will have some quality time at home to consider the pitfalls of keeping it real.

(You can check out the complete decision — as well as his prior discipline — over the next few pages…)

Colorado lawyer suspended for 18 months for disclosing confidential information in response to client internet criticism [Lawyer Ethics Alert Blogs]