Last week, the New York County Lawyers Association Professional Ethics Committee released Formal Opinion 748, addressing the ethical implications of lawyers' use of LinkedIn. I had the opportunity to speak about this opinion and about other ethics issues involved with LinkedIn use at a CLE program for the New York State Trial Lawyers Association last Friday, and some interesting discussions ensued.
Here's a quick overview of the opinion:
Is LinkedIn Advertising in New York?
According to Opinion 748, LinkedIn is not advertising if it only contains information about an attorney's Education and current and past employment. However, if it contains additional information, such as a description of the attorney's practice areas, skills, endorsements or recommendations, the attorneys's LinkedIn Profile will be considered advertising.
[Comment: As my readers know from past posts on this blog and elsewhere, to get the most out of LinkedIn, attorneys should be making their LinkedIn Profiles as complete as possible and including information about what areas they practice in, what kinds of clients they represent, what skills they have, what services they provide to their clients, and more. If they do so, their LinkedIn Profile will be considered advertising in New York, according to this definition.]
Compliance with Rule 7.1- Advertising
Once you have established that your LinkedIn Profile qualifies as advertising, you'll need to review Rule 7.1 to ensure your Profile is in compliance. According to Opinion 748, this includes ensuring that your LinkedIn Profile contains appropriate disclaimers, such as the "Attorney Advertising" disclaimer.
The opinion also notes that
If an attorney also includes (1) statements that are reasonably likely to create an expectation about results the lawyer can achieve; (2) statements that compare the lawyer’s services with the services of other lawyers; (3) testimonials or endorsements of clients; or (4) statements describing or characterizing the quality of the lawyer’s or law firm’s services, the attorney should also include the disclaimer “Prior results do not guarantee a similar outcome.” (emphasis added)
Specialization and Rule 7.4
As I mentioned in this post, in 2013, NYSBA Committee on Professional Ethics issued Opinion 972, which prohibits attorneys from using any section on LinkedIn with the title or heading "Specialties" unless they are properly certified. Opinion 748 addresses specialization in another area of LinkedIn: the Skills section.
Although Opinion 748 requires lawyers who include skills on their LinkedIn Profiles to include disclaimers, merely listing those skills on your LinkedIn Profile does not constitute a claim to be a specialist under Rule 7.4. In other words, you can list a skill on your LinkedIn Profile even if you have not been certified as a specialist in a particular area of law or law practice by a private organization approved for that purpose by the American Bar Association.
Endorsements and Reccomendations
According to Opinion 748,
The ethical treatment of endorsements and recommendations depends on who is considered to “own” the endorsement and recommendation: the author of the endorsement or recommendation or the person whose profile is enhanced by it.
On LinkedIn, users have control over what is posted on their own Profiles. They can choose to reject or hide an Endorsement, and Recommendations do not appear on a user's Profile unless approved by the owner of the Profile. Accordingly, Opinion 748 holds lawyers responsible for ensuring the accuracy of what appears on their Profiles, stating that, "there is a duty to review social networking sites and confirm their accuracy periodically, at reasonable intervals."
Nothing in Opinion 748 was particularly surprising, and not all jurisdictions in New York may follow the opinion, but it is instructive and is worth the read.