Negative Client Reviews, Lawyer Responses Revealing Damaging Information about Clients, and "Offensive Personality"

From Indiana Supreme Court Chief Justice Loretta Rush's Order Approving Statement of Circumstances and Conditional Agreement for Discipline in yesterday's In the Matter of Wruble:

Stipulated Facts: Respondent represented "Client" in a matter in St. Joseph County. The parties reached an agreement, and the case was dismissed after Client fulfilled the conditions of the agreement. Client later left a one-star review of Respondent's law firm on Google in which Client complained of difficulties communicating with Respondent.

Respondent then made multiple demands, using derogatory and profane language, that Client remove the review. When Client refused, Respondent posted a public response to the Google review in which he revealed damaging information about Client relating to the subject of the representation. Respondent revealed similar damaging information in a defamation lawsuit he filed against Client in Marion County. This lawsuit was dismissed with prejudice on Respondent's motion in January 2024.

Violations: The parties agree that Respondent violated Indiana Professional Conduct Rule 1.9(c) by impermissibly revealing information relating to the representation and Admission and Discipline Rule 22 (Oath of Attorneys) by acting in an offensive manner.

Discipline: The Court, having considered the submission of the parties, now approves the following agreed discipline.

For Respondent's professional misconduct, the Court suspends Respondent from the practice of law for a period of 30 days, beginning on the date of this order, all stayed subject to completion of at least 18 months of probation with JLAP [Judges & Lawyers Assistance Program] monitoring[, including] "attend[ing] certified anger management therapy and follow all recommendations therefrom."

Justice Geoffrey Slaughter concurred in part and dissented in part, as to the "offensive personality" point:

I concur in approving the parties' agreement that Wruble violated Indiana Rule of Professional Conduct 1.9(c), which bars lawyers from revealing information concerning their representation of a client. I also concur in the parties' agreed discipline, which requires Wruble to (among other things) attend anger-management therapy.

But I respectfully dissent from the parties' agreement that Wruble should be sanctioned for violating Admission and Discipline Rule 22—our oath of attorneys. The commission charged—and Wruble agreed—that he violated the part of our oath requiring lawyers to "abstain from offensive personality." I am generally content to sign off on settlement agreements between the commission and respondent lawyers, especially their agreements on what rules were violated. But today I part from my customary practice.

To be clear, my objection is not that this charge lacks factual support; Wruble's personality during this episode was indeed offensive. I am concerned, rather, with interpreting our oath of attorneys to impose minimal standards that warrant sanctions for those whose conduct falls short. The oath is broad and aspirational, and it lacks the specific standards found in other rules—or in the myriad primary and secondary authorities refining those rules.

My specific concern is with the ever-present threat that lawyers will face charges for whatever the commission deems an "offensive personality"—an inherently subjective assessment that risks a dangerous slippery slope. The rules contemplate a wide range of permissible lawyer conduct that runs the gamut from amiable to aggressive, milquetoast to militant, passive to pugnacious. Unpopular lawyers or those with disfavored clients may be especially vulnerable to enforcement overreach. The better enforcement practice, in my view, is for the commission to avoid "offensive personality" charges altogether and to ground charges against those deserving of professional sanction (like Wruble) in one or more targeted professional-conduct rules….

Justice Derek Molter, with whom Chief Justice Rush and Justice Mark Massa (i.e., a majority of the five-member court) concurred, adding: "[I]n a case where it makes a difference, I remain open to considering the question Justice Slaughter's partial dissent identifies."

Comments

[Old Smokin' Egg]

Slaughter’s point strikes me as a very valid one. If “offensive” isn’t well defined, it’s apt to be judged in terms of the position that someone’s taking, and not just the mode of expression that they use while defending that position. I might be allowed to use all manner of intemperate language while prosecuting Harvey Weinstein, but even the quietest and most moderate defense of him might be called out as offensive.

[Rev. Arthur L. Kirkland]

I hope nobody tells Old Smokin' Egg about the "unreasonable" standard.

[TwelveInchPianist]

So are you the grill, or the guy smoking in bed next to a ticked-off chicken?

[Bubba Jones]

It's more valid with respect to behavior toward adversarial parties.

In this case he was a deliberate asshole to his own client, in the process of breaching attorney-client confidentiality.

Why is this guy allowed to practice law?

[ReaderY]

Indiana could, if it wants to write rules covering this condict that have greater specificity. It could, for example, prohibit an attorney from publicly insulting or denigrating a client or from describing a client using profane or denigrating language, except where the attorney is acting to represent the client to persue a legitimate representation strategy (e.g. admitting to lesser conduct to gain credibility for challenging charges of greater conduct, admitting the client is no saint to give credibility to arguments he nonetheless didn’t commit the crime charged, etc.)

[CommentMonkey]

The problem with using the aspirational language in lawyer's oaths as the basis for discipline isn't just the risk that lawyers might be disciplined based on a vague and subjective standard. It's that investigations and charging decisions can proceed on the same standard. Do we want prosecutors demanding and reviewing client correspondence searching for something that might come across as intemperate? For every published decision like this one, there are probably fifty cases in which a lawyer is threatened with such charges or required to turn over client correspondence so the investigator can search for a basis to file them.

Going through a disciplinary investigation is costly and burdensome. It can significantly impact the cost of obtaining malpractice insurance. While most bodies that prosecute lawyer ethics violations are no doubt fair and conscientious, there is the risk that a less scrupulous prosecutor might leverage an investigation to harass or intimidate lawyers who represent unpopular clients or causes. Better for courts to follow Justice Slaughter's approach and make clear that aspirational language in a lawyer's oath can't support lawyer discipline, period.

[Joe_dallas]

One piece of advise I was given as a new professionals very early in my career - is never sue a client for unpaid fees - always creates the risk of counter claim for malpractice or some other counter claim whether warranted or not.

Same rule applies here - it almost always backfires, along with the productive time lost, you almost always lose.

[TextFirst]

Clients are never really paying for the last month, they're always paying for you to keep working on their matter this month.