Legal Ethics and Social Media - a follow up

It's tough to keep up with the ethics rules with regard to lawyers' social media use these days - the platforms keep changing, the way lawyers use them is evolving, and the ethics rules make it difficult for lawyers to decide what to do.

I wrote about legal ethics and social media in August on the Law Technology Today blog here. In that post, I discussed two of the hottest topics with respect to lawyers' use of social media (and specifically, LinkedIn) - "specialties" and "expertise."

While most lawyers know to stay away from using these terms on their own websites, in blogs and other marketing materials, a larger problem arises when those words appear as headings in a social media platform that cannot be changed or otherwise controlled by the lawyer or law firm.

Although new LinkedIn users are not asked to enter information under a "Specialties" heading on their Profile, users who created their Profiles before LinkedIn removed that as part of the Summary section on individual Profiles will still see the information listed under "Specialties" on their Profiles. And LinkedIn Company Pages still include a "Specialties" section where firms can list their areas of concentration. But the use of the word "specialties" is a no-no for lawyers in many jurisdictions, and some have come out with opinions warning lawyers and law firms against using those sections of LinkedIn unless they are certified by an accredited body in that area.

For example, the New York State Bar Association Committee on Professional Ethics released Opinion 972 in June 2013 which specifically advised that law firms should not list specialties on their LinkedIn Company Page.

After New York issued their opinion, other jurisdictions followed suit. For example, in September, the Florida bar issued this letter in response to a lawyer's inquiry, referencing the New York opinion and stating that, "Certification is specific to individual lawyers; a law firm cannot be certified, and cannot claim specialization or expertise in an area of practice." Thus, the lawyer was not permitted to list their areas of practice under the heading "Skills and Expertise" on their LinkedIn Profile because they were not board certified.

In November of 2013, the Florida Board of Bar Governors met to discuss proposed action to be taken with respect to lawyers and their use of LinkedIn. The board voted to withdraw the September staff opinion mentioned above, pending further review of the issue and issuance of a proposed advisory opinion. The second vote was to request the preparation of an advisory opinion on the use of LinkedIn by attorneys and law firms by the Standing Committee on Advertising. See more on this story from the Florida Bar News here.

The Florida Bar News also reported that the Florida Standing Committee on Advertising had written to LinkedIn after the November vote, and a meeting was scheduled to be held with officials from LinkedIn to discuss the issues with lawyers' use of the service. The meeting was reportedly held in December 2013, at which time a LinkedIn representative informed the Bar that the company is working to remove the “expertise” heading, hopefully early in 2014, thus (hopefully) clearing the way for more lawyers to use the "Skills" section of their LinkedIn Profiles to list their practice areas.

The "expertise" has also been addressed by the Philadelphia Bar Association Professional Guidance Committee in Opinion 2012-8, issued in late 2012. The lawyer seeking the opinion was concerned that listing his practice areas under Skills and Expertise on LinkedIn would be akin to saying he was a specialist in that area, which would be prohibited by the Rules.

The opinion noted that simply listing the attorney’s areas of practice under this section would be akin to listing areas of practice on an attorney’s website, but making any further representations regarding the level of proficiency in any particular area would be prohibited.

Because of the maze of issues and the differences in how they are treated by the various jurisdictions governing lawyers, all lawyers and law firms must be vigilant in seeking out the most updated information and opinions issued in this area before undertaking any new endeavors in the social media realm. Law firms would do well to monitor both the firm's social media presence and the activities of the firm's lawyers on social media to ensure compliance with the relevant rules.