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By Samson Habte
A law firm may not describe its services under a section on LinkedIn devoted to “Specialties,” but an individual lawyer may do so if she has been appropriately certified and complies with the disclaimer requirements that apply to communications about practice area specialization, the New York State bar's ethics committee concluded June 26 (New York State Bar Ass'n Comm. on Prof'l Ethics, Op. 972, 6/26/13).
Although lawyers and law firms may publicly identify practice areas in which they concentrate, New York Rule of Professional Conduct 7.4(c) specifies that only individual lawyers may state that they have been “certified as a specialist in a particular area of the law” by a private organization authorized to grant such recognition.
“Rule 7.4(c) does not provide that a law firm (as opposed to an individual lawyer) may claim recognition or certification as a specialist,” the committee explained, “and Rule 7.4(a) would therefore prohibit such a claim by a firm.”
The committee pointed out that a lawyer who does make such a claim on a social media profile must “comply with [Rule 7.4(c)'s] disclaimer provisions, which have undergone recent changes.”
The committee's guidance responds to an inquiry from a law firm that created a LinkedIn profile and was prompted to fill in an “About” segment on the page that “include[s] a section labeled 'Specialties.'”
“The firm can put items under that label but cannot change the label itself,” the opinion states. “However, the firm can, in the 'About' segment, include other sections entitled 'Skills and Expertise,' 'Overview,' 'Industry,' and 'Products and Services.'”
The law firm asked whether it could use the “Specialties” section to describe the kinds of services it provides.
The panel concluded that the firm may not do so.
In reaching that determination, the committee focused on the heading that LinkedIn chose to provide users for use in describing their professional services.
“A lawyer or law firm listed on a social media site may, under Rule 7.4(a), identify one or more areas of law practice,” the committee acknowledged. “But to list those areas under a heading of 'Specialties,' would constitute a claim that the lawyer or law firm 'is a specialist or specializes in a particular field of law,'” the committee observed.
A lawyer or law firm may publicly identify one or more areas of law in which the lawyer or the law firm practices, or may state that the practice of the lawyer or law firm is limited to one or more areas of law, provided that the lawyer or law firm shall not state that the lawyer or law firm is a specialist or specializes in a particular field of law, except as provided in Rule 7.4(c).
Unlike firms, individual lawyers may make specialization claims, the committee said, pointing to the exception identified in Rule 7.4(a). That exception, set forth in Rule 7.4(c), provides that such claims by lawyers are permissible if:
• the certifying organization has “been approved for that purpose by the American Bar Association,” and the lawyer “prominently” displays a disclaimer stating that the organization in question is “not affiliated with any governmental authority”; and
• the lawyer “prominently” displays a disclaimer that certifications granted by organizations in other jurisdictions are “not recognized by any governmental authority within the State of New York.”
The committee noted that the task of complying with the disclaimer requirements in Rule 7.4(c) has been complicated by the recent decision in Hayes v. Grievance Comm. of Eighth Judicial Dist., 672 F.3d 158, 28 Law. Man. Prof. Conduct 141 (2d Cir. 2012). In that case, the Second Circuit held that two parts of the rule's mandated disclaimers were unconstitutional infringements on lawyers' rights to engage in commercial speech.
The 'LinkedIn Loophole'
In a February 2013 notice to its members, the South Carolina bar highlighted a problematic feature on LinkedIn that allows members of the public to add endorsements of a lawyer's “expertise” to the lawyer's online profile.
The endorser's comments then appear on “an as-yet unremovable section on each lawyer's page” entitled “Skills & Expertise,” the notice said. This placement creates a Rule 7.4 problem even though it was a third party, and not the lawyer, who added the offending language, the bar concluded.
The bar group directed lawyers to a temporary fix: instructions on how to hide third-party endorsements on a LinkedIn profile.
The court's first objection related to language that “certification is not a requirement for the practice of law in the State of New York and does not necessarily indicate greater competence than other attorneys experienced in this field of law.”
The Appellate Divisions responded to that ruling by deleting the offending language, the committee noted.
However, the second part of the Hayes court's ruling--which involved a “void for vagueness” challenge to the words “prominently made” in the rule's description regarding the placement of a lawyer's disclaimer--did not compel a deletion of that language, the panel said.
The language did not have to be deleted from Rule 7.4(c) because the Hayes court found that the words “prominently made” were not facially unconstitutional, but were instead void for vagueness as applied to the plaintiff in that case.
“In a memorandum dated May 31, 2013, the [state] Unified Court System requested comments from interested persons with respect to defining the term 'prominently made,'” the committee noted.
Because that issue remains unresolved, however, a lawyer “asserting a specialty risks violation of Rule 7.4(c) if the social media site does not satisfy the requirement of 'prominently' making the required disclaimer,” the panel cautioned.
Copyright 2013, the American Bar Association and The Bureau of National Affairs, Inc. All Rights Reserved.
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