JACPA Ethics Alert
New York ethics opinion provides guidance for lawyers regarding the ethical implications of attorney profiles and content on LinkedIn
Hello everyone and welcome to this Ethics Alert which will discuss the recent New York ethics opinion which provides guidance to lawyers who use LinkedIn.com for professional enhancement as well as the ethical implications of attorney profiles. The opinion is New York County Lawyers Association Professional Ethics Committee Formal Opinion 748 (March 10, 2015) and the link to the formal opinion is here:https://www.nycla.org/siteFiles/Publications/Publications1748_0.pdf
As the opinion notes, LinkedIn is a business-oriented social networking website which has become popular and is now commonly used by lawyers. LinkedIn allows a lawyer to create a profile with background information, including work history and education, and links to other users based on their experience or connections. Lawyers can also use the site to communicate with acquaintances, locate someone with a particular skill or background or to keep up with other lawyers’ professional activities and job changes. The lawyer can also publish educational information on the site’s home page or create separate LinkedIn page. I have a LinkedIn blog page which is here: https://www.linkedin.com/groups?home=&gid=4043538&trk=groups_most_recent-h-logo
The opinion cautions that a lawyer’s content may be an advertisement and that New York Rule of Professional Conduct 7.1 prohibits attorneys and law firms from disseminating an advertisement that contains false or misleading statements and/or claims. The term “advertisement” includes “communications made in any form about the lawyer’s services, the primary purpose of which is retention of the lawyer or law firm for pecuniary gain as a result of the communication.”
The New York rule permits attorneys to include educational experience, but prohibits undisclosed paid endorsements and fictitious portrayals or references to lawyers not associated with the firm. The New York rule also requires online content which is an advertisement to be labeled as “Attorney Advertising” and advertisements must also include a disclaimer that results are not guaranteed.
The opinion concludes that “(a)ttorneys may maintain profiles on LinkedIn, containing information such as education, work history, areas of practice, skills, and recommendations written by other LinkedIn users. A LinkedIn profile that contains only one’s education and current and past employment does not constitute Attorney Advertising. If an attorney includes additional information in his or her profile, such as a description of areas of practice or certain skills or endorsements, the profile may be considered Attorney Advertising, and should contain the disclaimers set forth in Rule 7.1. Categorizing certain information under the heading ‘Skills’ or ’Endorsements’ does not, however, constitute a claim to be a ‘Specialist’ under Rule 7.4, and is accordingly not barred, provided that the information is truthful and accurate.”
“Attorneys must ensure that all information in their LinkedIn profiles is truthful and not misleading, including endorsements and recommendations written by other LinkedIn users. If an attorney believes an endorsement or recommendation is not accurate, the attorney should exclude it from his or her profile. New York lawyers should periodically monitor and review the content of their LinkedIn profiles for accuracy.”
Bottom line: As the opinion states, lawyers should carefully monitor their social media content to insure that it complies with the ethics rules in the lawyer’s jurisdiction(s). If a communication is primarily intended to obtain clients and for pecuniary gain (and contains information that goes beyond the “tombstone language” permitted in that jurisdiction), the communication will most likely be considered to be an advertisement and all relevant rules of advertising must be followed. This would efforts to insure that all information is accurate, that the content is not misleading, and the inclusion of any relevant disclaimers. The Florida Bar’s advertising rules are similar to New York’s; however, lawyers in jurisdictions other than New York should not rely on this opinion and must review and comply with the relevant advertising rules.
Be careful out there.
As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding these or any other ethics, risk management, or other issues, please do not hesitate to contact me.
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