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Maybe He Deserved Those Negative Online Reviews?

From People v. Underhill (Colo. Sup. Ct. Office of Presiding Disciplinary Judge, issued Sept. 17 but just posted on Westlaw recently):

The Presiding Disciplinary Judge dismissed the reinstatement petition of James C. Underhill Jr. on September 17, 2020.

In 2015, Underhill was suspended for eighteen months, to run consecutive to a suspension imposed in an earlier disciplinary case. Underhill was disciplined for publicly responding to former clients’ negative online reviews with internet postings that disclosed sensitive and confidential information obtained during the representation. Underhill then sued the couple for defamation and communicated with them ex parte, even though he knew that they were represented by counsel, and despite their lawyer’s repeated demands that he not do so. When the lawsuit was dismissed, Underhill brought a second defamation action in a different court, alleging without adequate factual basis that the couple had made other defamatory internet postings. Underhill was also suspended for misconduct in a second client matter in which he published an attorney-client communication online.

The Presiding Disciplinary Judge dismissed Underhill’s petition for reinstatement with leave to refile. The Presiding Disciplinary Judge concluded that because five years had elapsed since Underhill had been suspended, he was required under C.R.C.P. 251.29(b) to pass the Colorado bar exam before petitioning for reinstatement. Because Underhill neither took nor passed the Colorado bar exam before petitioning for reinstatement, the Presiding Disciplinary Judge found that Underhill failed to state a claim that he is entitled to be reinstated to the practice of law in Colorado.

To be fair, it’s hard for a lawyer (or a psychiatrist or someone in a similar profession) to respond to clients’ negative reviews, given the obligations of confidentiality. But that’s part of the job.

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Eugene Volokh

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