Social media and advertising issues

Another bar association has recently issued an ethics opinion  over whether/how lawyers can make use of particular types of social media, whether such use constitutes advertising, and related issues.  The particular ethics opinion in question was issued March 10, 2015 by the New York County Lawyers Association and deals with LinkedIn.

Many of the questions addressed in the opinion are not as relevant in Tennessee as they might be to lawyers in other jurisdictions.  This is because, thankfully, our state has a less burdensome regulatory regime when it comes to advertising overall (and one that gives a bit more respect to the intellect of consumers of legal services) than many other jurisdictions.  A key aspect of the NYCLA opinion focuses on what responsibility a lawyer may have for third-party endorsements on LinkedIn.  The opinion gives what I consider to be largely sound advice for Tennessee lawyers to try to follow on that question.  (This is not the first New York opinion focused on LinkedIn; a 2013 opinion of the New York State Bar Association that dealt with a heading no longer available on the platform – “Specialties” – actually likely had some impact on LinkedIn changing its nomenclature to avoid using the “specialty” buzzword.)

I get asked variations of this “skills/endorsements” question about LinkedIn profiles at an increasing number of seminars and have consistently tried to offer a response that focuses on application of RPC 7.1 – don’t say things about yourself or your services that are false or misleading.  RPC 7.1’s prohibition on “mak[ing] a false or misleading communication about the lawyer or the lawyer’s services” applies to all statements made by a lawyer about themselves or their services not just advertising.  It is also implicated by false billing to clients — saying you spent 2 hours doing something you only spent 1 hour doing is a false statement about your services.

Thus, as long as LinkedIn allows a lawyer to control the decision to accept particular endorsements of skills and have them added to a profile or to ignore them/reject them, I think the best way to draw the line is to decline endorsements of skills in areas of practice that you don’t really do or know a good bit about.

For example, if someone endorses me in the area of tax law, I don’t ratify their gesture by adding it to my profile.  I do not try to draw lines, however, in areas where I do practice by trying to second-guess people who I may not quite understand how they feel comfortable endorsing me in an area (as long as I do happen to think I know a thing or to about that area of practice).  The New York opinion, for the most part, echoes that type of guidance and does a good job of making clear that lawyers should have a reasonable time to deal with a third-party attribution that shows up on their profile and remedy it – recognizing that it would be unreasonable to expect lawyers to scrub their profiles on say a daily basis.

By the way, if you haven’t done so within your LinkedIn profile, it helps to go see how your profile looks to your connections versus just members of the public versus how it appears just to you.  As to the public at large, for example, skills endorsements you accept will likely lead your profile to simply list the collection of skills without any indication that those were suggested by other folks.  The second sentence of RPC 7.1 explains that “[a] communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.”  So, if I accepted an endorsement from someone for a skill I don’t really have, then my public profile looks like I’m saying I’m  skilled in tax law, not that I’m saying “according to John Doe who is pictured in this little thumbnail to the right, I’m skilled in tax law.”  This could present a RPC 7.1 problem.

The rest of the NYCLA opinion – its concerns with whether a LinkedIn profile is “attorney advertising” or not —  is not nearly as pertinent for Tennessee lawyers because our rules no longer require lawyers to file advertisements with the BPR (as was the case until 2011) and, instead, RPC 7.2 only imposes a retention requirement on lawyers.  Likewise, since people have to go seek out your profile information – or agree at least to “connect” with you on the platform – there is limited risk that your LinkedIn profile information would be treated as a targeted solicitation of a potential client requiring compliance with RPC 7.3.

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