Legal Ethics and Social Media
Lawyers are adopting social media at an increasing rate, but many lawyers are unaware of the potential ethical pitfalls of participating on social media platforms – even those geared toward professional, as opposed to social interaction (such as LinkedIn).
All lawyers should be familiar with the ethical rules in their jurisdiction, including rules as they relate to advertising, solicitation, and communication about the lawyer or law firm’s services. But many lawyers seem to forget these rules or don’t apply them appropriately to their online activities, including interaction on social networking platforms. Often ethical breaches occur inadvertently, or as a result of headings or settings that the lawyer or law firm has no control over because they are set by the platform itself. But the mere fact that the lawyer cannot control the setting doesn’t necessarily mean that the lawyer is safe.
Two common examples with regard to LinkedIn are the use of “specialties” and “skills and expertise.”
For individual Profiles, LinkedIn has eliminated the “Specialties” section that used to follow the Summary; new users of LinkedIn (or those who had not previously completed this section) will no longer see the option to add “Specialties” to their Profiles. Users who had previously completed the Specialties section will now see that information displayed as part of the Summary section.
Most lawyers who completed this section in the past used it as an opportunity to list their areas of practice. In LinkedIn in One Hour for Lawyers, we recommend that lawyers eliminate this section so as not to cause any potential problems in jurisdictions where the ethical rules prohibit lawyers from claiming that they are specialists without specific certification by an approved body in a particular area of practice.
In addition to individual profiles, law firms can create Company Pages for their firms to showcase firm-wide information and provide Updates, information about employees, etc. When completing the “About” section on a LinkedIn Company Page, users will see an option to list the firm’s Specialties. Firms should use caution when completing this section, and be sure that doing so will not be a violation of ethical rules.
The New York State Bar Association Committee on Professional Ethics released Opinion 972 in June of this year which specifically advises that law firms should not list specialties on their LinkedIn Company Page. The opinion notes that while firms are permitted to list their areas of practice, they may not do so under a “Specialties” heading, even where (as here) the firm has no control over the heading and cannot change it. This is so because the New York Rules prohibit lawyers or law firms from stating that the lawyer or law firm is a specialist or specializes in a particular field of law.
As a practical matter, this restriction should not create too many problems for purposes of creating an effective law firm Company Page, as firms can simply list the practice areas in the general firm description, and can list them separately as Services under the Products and Services tab of the Company Page (which provides more opportunities for description, addition of images and disclaimers). However, unwary firm or Company Page administrators may not be aware of the restriction when creating the Page.
The New York opinion specifically declines to address the “Skills and Expertise” section of the LinkedIn Profile (individual Profiles, not law firm Company Pages), however, other jurisdictions have addressed this issue.
Skills and Expertise
In late 2012, the Philadelphia Bar Association Professional Guidance Committee issued Opinion 2012-8, addressing LinkedIn “Skills and Expertise.” 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.
In all instances, attorneys should avoid placing anything on a LinkedIn profile that might be considered ‘false or misleading.’ Unfortunately, different jurisdictions have different standards for what would be considered misleading, and some are more restrictive than others. There is no guarantee that your jurisdiction will follow either of these opinions, or the other existing opinions regarding lawyers and social media use. The field continues to evolve and the rules will need to catch up.
As always, when in doubt, seek an ethics opinion in your jurisdiction, or leave the potentially problematic sections blank and find another way to get your information across.