Earlier this month, the New York County Lawyers Association weighed in on the ethical obligations of lawyers who maintain LinkedIn profiles in Formal Opinion 748 (online: http://www.nycla.org/siteFiles/Publications/Publications1748_0.pdf). This is an important opinion since LinkedIn is the most popular social network used by lawyers. In the past there has been confusion as to which features pose ethics issues, especially as the platform has evolved over time. This much-needed, in depth opinion helps to establish some additional guidelines for New York lawyers to follow when it comes to LinkedIn.
The first issue the Ethics Committee considered was which aspects of a lawyer’s profile on LinkedIn did not trigger the attorney advertising disclaimer requirements set forth in the New York Rules of Professional Conduct Rule 7.1. The Committee concluded that only basic information about an attorney’s background may be included in a LinkedIn profile without the need for such a disclaimer: “Attorneys may maintain profiles on LinkedIn, containing information such as education, work history, areas of practice, skills, and recommendations written by other
LinkedIn users. A LinkedIn profile that contains only one’s education and current and past employment does not constitute Attorney Advertising.”
However, should attorneys choose to include additional information in their profiles, then an attorney advertising disclaimer would be required. The Committee explained that “a LinkedIn profile that includes subjective statements regarding an attorney’s skills, areas of practice, endorsements, or testimonials from clients or colleagues is likely to be considered advertising…(and if) an attorney includes additional information in his or her profile, such as a description of areas of practice or certain skills or endorsements, the profile may be considered Attorney Advertising and should contain the disclaimers set forth in Rule 7.1.”
Next, the Committee described some of the situations where a disclaimer would be required and provided examples of appropriate disclaimers: “If an attorney’s LinkedIn profile includes a detailed description of practice areas and types of work done in prior employment, the user should include the words ‘Attorney Advertising’ on the lawyer’s LinkedIn profile. See RPC 7.1(f). If an attorney also includes (1) statements that are reasonably likely to create an expectation about results the lawyer can achieve; (2) statements that compare the lawyer’s services with the
services of other lawyers; (3) testimonials or endorsements of clients; or (4) statements describing or characterizing the quality of the lawyer’s or law firm’s services, the attorney should also include the disclaimer ‘Prior results do not guarantee a similar outcome.’”
Finally, the Committee addressed attorneys’ ethical obligations in regard to accurate testimonials and endorsements. The Committee concluded that because LinkedIn gives its users control over their profiles, lawyers have a continuing obligation to periodically review their LinkedIn Profiles. As part of the review process lawyers must vet the recommendations included in their profile to ensure that they are in accordance with the Rules of Professional Conduct: “Attorneys must ensure that all information in their LinkedIn profiles, including endorsements and recommendations written by other LinkedIn users, is truthful and not misleading. If an attorney believes an endorsement or recommendation is not accurate,the attorney should exclude it from his or her profile. New York lawyers should periodically monitor and review the content of their LinkedIn profiles for accuracy.”
Overall this was a helpful decision and provides New York lawyers with practical guidelines. Based on this decision, lawyers would be wise to err on the side of caution and carefully review their LinkedIn profiles to ensure compliance with this decision. Another important step lawyers should take is to change their LinkedIn notification settings so that they receive emails from LinkedIn advising them of new endorsements and recommendations so that each one can be reviewed for compliance prior to appearing on their LinkedIn profile.