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March 16 — Lawyers may maintain profiles on LinkedIn, but those that include more than basic biographical data require special scrutiny under several ethics rules—including standards that govern lawyer advertising, claims about specialized skills and third-party endorsements, the New York County bar's ethics committee advised in a March 10 opinion (N.Y. Cnty. Lawyers Ass'n Comm. on Prof'l Ethics, Op. 748, 3/10/15).
The opinion is the latest in a handful of state and local bar advisories to explore the ethical implications of using LinkedIn—an increasingly popular professional networking tool used by 75 percent of lawyers, according to a 2014 ABA survey.
The opinion addressed three questions:
• whether a LinkedIn profile is considered “Attorney Advertising”;
• when it is appropriate for an attorney to accept endorsements and recommendations; and
• information attorneys should include (and exclude) from their LinkedIn profiles to ensure compliance with the New York Rules of Professional Conduct.
LinkedIn users generally control the data appearing on their profiles—which, the committee said, may “provide objective, biographical information such as one's ‘Education' and ‘Experience,' as well as subjective information, such as ‘Skills,' ‘Endorsements,' and ‘Recommendations.'”
The opinion said that the extent to which a profile is visible to others may depend on whether the viewer located the profile through an external search engine or is connected to the LinkedIn user whose profile she has accessed.
“In light of the varied information an attorney may provide on his or her profile, and which information is visible to online users, the use of LinkedIn raises concerns about what aspects of an attorney’s profile constitute ‘Attorney Advertising,'” the committee said.
It said “a LinkedIn profile that contains only biographical information, such as a lawyer’s education and work history,” doesn't constitute “attorney advertising.”
Not “all communications, including communications that may have the ultimate purpose of attracting clients, constitute attorney advertising,” the committee said.
It said the comments to Rule 7.1 of the New York Rules of Professional Conduct “make clear” that advertising rules “do not encompass communications with current clients or former clients germane to the client’s earlier representation” and that “communications to ‘other lawyers … are excluded from the special rules governing lawyer advertising even if their purpose is the retention of the lawyer or law firm.”
The committee said profiles that include “subjective statements” regarding “an attorney’s skills” or “areas of practice” will constitute advertisements under Rule 7.1.
The committee said such statements also may implicate Rule 7.4, which states that lawyers may not identify themselves as “specialists” unless they have been certified as such by an appropriate organization.
The committee said Rule 7.4 is implicated when attorneys list information about their “skills or practice areas” under headings labeled “Specialties” but isn't triggered if that information is placed under headings such as “Experience” or “Skills.”
Because Rule 7.4(a) “contemplates advertising regarding an attorney's practice areas,” the panel said, there is a “distinction between claims that an attorney has certain experience or skills and [a] claim to be a ‘specialist' under Rule 7.4.”
Next, the committee said endorsements and recommendations written by other LinkedIn users “raise additional ethical considerations.”
“Because LinkedIn gives users control over the entire content of their profiles, including ‘Endorsements' and ‘Recommendations' by other users (by allowing an attorney to accept or reject an endorsement or recommendation), we conclude that attorneys are responsible for periodically monitoring the content of their LinkedIn pages at reasonable intervals,” the committee stated.
“To that end, endorsements and recommendations must be truthful, not misleading, and based on actual knowledge pursuant to Rule 7.1,” the committee said, citing Pennsylvania Formal Ethics Op. 2014-300.
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