Ethics Opinion Draws Line on When Social Media Is Considered Advertising
By Catherine McLeod Chiccine, Litigation News Associate Editor – May 20, 2016

Whether social media constitutes attorney advertising is an unsettled question for attorneys. A recent ethics opinion provides much-needed guidance on the question. Attorneys can post away on professional networking sites like LinkedIn with certain caveats, according to an ethics opinion of the Association of the Bar of New York Committee on Professional Ethics. Attorneys looking for guidance regarding attorney advertising will find the opinion a useful resource.

Fitting a Square Peg in a Round Hole
Whether social media constitutes attorney advertising is a question that has plagued attorneys in recent years. Ethics committees “find themselves straining to force fit the proverbial peg of social media into the round hole of legal ethics—with varying degrees of success,” the New York City Bar noted. In addition, “due to the pace of technological change, bar regulators may be reluctant to amend ethics rules to incorporate social media use,” the opinion added. This is because of “a legitimate concern that any such rules may become obsolete as social media platforms develop and change.”

The New York City Bar provided a detailed analysis in an attempt to address these concerns. A lawyer’s LinkedIn profile is attorney advertising only if the profile meets five criteria: the lawyer makes the content; the primary purpose is for client retention of the lawyer for pecuniary gain; the content relates to the lawyer’s legal services; new clients are the intended audience; and the content does not fall into an exception to the definition of attorney advertising. The New York City Bar noted that, although its opinion focused on LinkedIn, it applies to other social networking sites such as Facebook and Twitter.

The New York City Bar emphasized that a LinkedIn profile comprises advertising only if there is “clear evidence that a lawyer’s primary purpose is to attract paying clients.” The opinion allows many types of LinkedIn content, for example, including a list of skills or description of practice areas. Simply displaying recommendations and endorsements is similarly permissible.

The bar association also stressed the importance of the profile’s relation to the legal services the lawyer offers. Current employment information, recent employment history, contact information, and educational background are acceptable. Similarly acceptable are status updates, blog posts, articles about legal developments, and online discussions with other LinkedIn members.

However, additional information like practice area descriptions or a list of skills relevant to the lawyer’s practice pushes a profile into the advertising realm. A recommendation describing a positive experience working with the lawyer also leans towards advertising.

The opinion also highlighted the profile’s intended audience. Lawyers should consider several questions here. Who are the lawyer’s LinkedIn connections and how active is he in expanding his connections? What types of LinkedIn groups does the lawyer join and how active is he? What elements of his LinkedIn profile are visible to the public? If the lawyer generally limits his connections to other lawyers, friends, family, current clients, or former clients, new clients are probably not the intended audience. Likewise, lack of activity in expanding connections or groups indicates the profile is probably permissible.

Five-Factor Test Provides Much-Needed Guidance
“The [five-factor] test is especially necessary because there are not many ethics opinions with this amount of detail,” says Scott E. Reiser, Roseland, NJ cochair of the ABA Section of Litigation’s Ethics & Professionalism Committee. “In the social media realm, detail is needed because in two years, the issue could be obsolete,” he adds.

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While it provides detailed guidance, Section leaders say the five-factor test is highly subjective. “Much LinkedIn activity will not be considered advertising,” says Keith Swisher, Phoenix, AZ cochair of the Attorney Advertising Subcommittee of the Section of Litigation’s Ethics & Professionalism Committee. “Identifying advertising activity will be highly context-dependent,” he adds.

What should an attorney do if his LinkedIn profile is considered advertising? Check the rules, warns the New York City Bar. The attorney must place an “attorney advertising” label in a “reasonable” location on the profile page. The profile must also contain the attorney’s law firm name, address, and telephone number. The attorney must keep a copy of the advertisement for the time proscribed by the rules of professional conduct. Finally, the advertisement must refrain from false, deceptive, or misleading statements.

When in Doubt, Err on the Side of Caution
“This opinion is a good guidepost for any bar association looking for guidance regarding attorney advertising,” says Reiser. “As social media develops and changes over time, more general guidelines may be developed,” he adds.

Section leaders stress the importance of checking the local rules. “Make sure you know what is permissible in all the jurisdictions you practice in,” says Reiser. In addition, if a lawyer practices in two or more states, “he generally ought to follow the more restrictive approach,” says Swisher. If an attorney is unsure if his LinkedIn profile constitutes advertising, “err on the side of caution,” Reiser warns. Swisher agrees. “If the lawyer’s profile goes much beyond educational background and employment history, the lawyer should comply with the jurisdiction’s advertising restrictions,” he says.

Keywords: legal ethics, advertising, LinkedIn, social media

 
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