April 25, 2015
Does your LinkedIn Profile violate legal ethics rules? (And how to be sure it doesn’t)
You are almost certainly one of the 119 million Americans on LinkedIn. (If you are not, you probably should be.) But if you are also a New York attorney, a new ethics opinion released last month means your LinkedIn profile could put you at risk of violating legal ethics rules. The good news is that fixing your LinkedIn profile is relatively easy. Here are the simple—but critical—steps you need to take now.Even if you are not an attorney, this should be useful.
Here are the highlights:
- Your LinkedIn profile is likely considered “attorney advertising,” unless you have a very limited profile.
- If your LinkedIn profile is attorney advertising, you need to include specific disclaimers.
- LinkedIn periodically changes its site, including the specific names of various sections in your profile. These seemingly innocuous changes can turn a compliant LinkedIn profile into a violation of attorney ethics rules with no notice to you.
Here is how to make sure you are compliant:
1) Is your profile considered “attorney advertising?” (The answer is probably “yes.”)
The New York County Lawyers Association (NYCLA) Professional Ethics Committee released Formal Ethics Opinion 748 on March 10, 2015.[i] The Opinion advises: “[I]f an attorney chooses to include information such as practice areas, skills, endorsements, or recommendations, the attorney must treat his or her LinkedIn profile as attorney advertising and include appropriate disclaimers pursuant to Rule 7.1.” (Opinion page 5, part c) Of course, that covers nearly every attorney’s LinkedIn profile.
The Opinion also examines whether an attorney can accept endorsements and recommendations on the site and what information attorneys may, or may not, include in their profiles to comply with the New York State Rules of Professional Conduct (the “Rules”).
What is an attorney advertisement?
Rule 1.0(a) defines an attorney “[a]dvertisement” as “any public or private communication made by or on behalf of a lawyer or law firm about that lawyer or law firm’s services, the primary purpose of which is for the retention of the lawyer or law firm.”
What can you include?
The Rules (7.1(b), (d)) also list the information that an attorney may include in an advertisement—education, past experience, fee arrangements, testimonials, endorsements.
What can’t you include?
Rule 7.1(c) also specifies information an attorney may not include in an advertisement—undisclosed paid endorsements and certain trade names.
2) So, assuming your profile is “attorney advertising,” what do you need to do?
a) Most profiles should include the phrase “Attorney Advertising” in the summary section
b) Many profiles will also require the disclaimer “Prior results do not guarantee a similar outcome”
c) Some very common LinkedIn profile language, including information on specialization, runs afoul of the rules
- “Attorney Advertising” label
The Rules are clear that online advertisements must be labeled “Attorney Advertising” on the “home page” if posted on a “web site” (Rule 7.1(f)). Any advertisement containing statements about the lawyer’s services, testimonials or endorsements must include the disclaimer “[p]rior results do not guarantee a similar outcome.” (Rule 7.1(e)(3))
In practice, the NYCLA opinion leads attorneys to conclude that the summary section in a typical attorney’s LinkedIn profile should include the phrase, “Attorney Advertising.” A typical attorney’s profile contains subjective statements regarding an attorney’s skills, practice areas or testimonials from clients or colleagues. However, if an attorney’s LinkedIn profile contains only biographical information, the attorney is excluded from the disclaimer requirement. The Committee explains that a profile consisting solely of an attorney’s education and a simple list of the attorney’s past and current employment does not constitute attorney advertising, even though including this information may ultimately attract clients.
A LinkedIn profile that includes a detailed description of practice areas and work completed in prior employment should also include the words “Attorney Advertising.”
- “Prior results…” disclaimer
If the profile contains statements that may create an expectation about future results that the attorney can achieve, compare the attorney’s services with other attorneys’ services, contain client endorsements or describe the quality of the attorney’s services, attorneys are urged to include the disclaimer “Prior results do not guarantee a similar outcome.” (Rule 7.1(d) and (e))
- Information on “specialization” can run afoul of the rules
Rule 7.4 prohibits attorneys from identifying as “a specialist” or “specializ[ing] in a particular field of law” unless the attorney has been appropriately certified. New York State Bar Association (NYSBA) Ethics Opinion 972 (June 26, 2013) concluded that an attorney may identify one or more areas of law practice on a social media site, but to list those areas under a heading of “Specialties” would likely violate Rule 7.4 unless the attorney’s certification met the Rule’s requirements.[ii] The applicability of the guidelines to LinkedIn’s default “Skills” and “Endorsements” fields has not yet been addressed in New York. Furthermore, the Rules make distinctions between paid endorsements and endorsements but the impact on the ethics analysis is not clear.
3) Seemingly innocent changes to LinkedIn’s website can cause attorneys special problems
LinkedIn sometimes changes its headings without notice. For example, the profile section now identified as “Skills and Expertise” was formerly “Specialties,” which is problematic.[iii] The NYSBA advises attorneys to consider avoiding these headings entirely.[iv] In contrast, NYCLA opines that skills or practice areas listed under the headings “Experience” or “Skills” do not constitute a claim to be a specialist under Rule 7.4. In any case, attorneys must periodically monitor their profile’s “Skills” and “Recommendations” sections and remove any endorsements that are wrong or misleading (for example, endorsements that use the word “specialist” or that list a skill the attorney does not have).[v]
Of course, all information contained on an attorney’s LinkedIn profile page must be truthful and accurate. Ultimately, New York attorneys are responsible for the information contained in their LinkedIn profile and should periodically review the content for accuracy and edit it accordingly.
This is merely a brief summary and discussion of NYCLA Opinion 748, not a substitute for the New York Rules of Professional Conduct, its official Comments or formal ethics opinions. Only the Rules and the Official Interpretations can provide complete and definitive information about this topic.
[i] New York County Lawyers Association Professional Ethics Committee Formal Opinion 748 (March 10, 2015) [ii] New York State Bar Association Committee on Professional Ethics Opinion 972 (June 26, 2013) [iii] New Hampshire Bar Association Ethics Corner article entitled Listing ‘Skills and Expertise’ on LinkedIn (June 21, 2013) [iv] Social Media Ethics Guidelines of the Commercial Federal Litigation Section of the New York State Bar Association at 4 (Mar. 18, 2014) [v] NYCLA Opinion 748 references Pennsylvania Bar Association Formal Op. 2014-300, “Ethical Obligations for Attorneys Using Social Media,” at 12