LinkedIn for Lawyers: Benefits and Burdens
LACBA Update, October 2014
By Lisa Clare L. Miller and Teresa J. Schmid. Ms. Miller is a partner with the Marcin Lambirth law firm in California and New York. She can be reached at (818) 305-2800 or via e-mail at LLM@Marcin.com. Ms. Schmid is an attorney and consultant practicing in Los Angeles. Both are members of LACBA’s Professional Responsibility and Ethics Committee (PREC). The views expressed in this article are the authors’ own.
According to the American Bar Association’s TECHREPORT 2013,1 more than 79 percent of lawyers surveyed use LinkedIn, an increase from 62.4 percent in 2011. In a profession notorious for its technological late-adopters, this level of use is startling, especially in light of controversies surrounding LinkedIn’s ethical implications for lawyers. An online search of “LinkedIn & ethics” yields a plethora of cautionary opinions, articles, blogs, and comments. When it comes to using LinkedIn, there is no safety in numbers for lawyers.
No California authority expressly deals with LinkedIn. Although other states’ ethics opinions do, their rules rely on the ABA’s Model Rules of Professional Conduct, not true for California’s Rules of Professional Conduct, so these out-of-state opinions offer limited guidance for California lawyers. But there is authority dealing with social media that can provide an analytical framework.
Rule 1-100 (A) describes the universe of authority applicable to all ethical analyses. The rule states that members should also consult the opinions of ethics committees in California, although those opinions are not binding as a matter of law. Among these are the opinions of the State Bar’s Standing Committee on Professional Responsibility and Conduct (COPRAC).2
Applying Ethics Rules to Representations on the Internet. Regardless of a lawyer’s subjective intent, the mere use of social media is a “communication” concerning availability for professional employment. In one of its earliest discussions of lawyers’ use of the Internet, Formal Opinion 2001-155, COPRAC posed the question that might have described LinkedIn: “What aspects of professional responsibility and conduct must an attorney consider when providing an Internet Web site containing information for the public about her availability for professional employment?”3 Citing Rule 1-400 (“Advertising and Solicitation”), COPRAC found that such a Web site constituted a “communication” under Rule 1-400(A) but not a “solicitation” under Rule 1-400(B). Similarly, COPRAC found that such communications were also governed by Business and Professions Code Sections 6157-6159.2 (“Legal Advertising”). The communication must not be “false, misleading, or deceptive” (Rule 1-400(D), and its message, taken as a whole, must be “factually substantiated” (Section 6158). Importantly, Section 6158 expressly applies to electronic media: Section 6158.1 describes communications that carry a rebuttable presumption of violation, and Section 6158.2 lists types of information that are presumed to be in compliance.
LinkedIn and the New Practice. Query: Do new lawyers, or experienced lawyers entering a new area of practice, unethically misrepresent their competence level by stating on their LinkedIn profile that they accept certain types of cases? No.
Rule 3-110(A) requires that a lawyer act competently. But it also describes ways in which a lawyer may acquire the necessary skills to ethically render legal services.4 In effect, the rules presume that lawyers of any experience can practice competently. Business and Professions Code Section 6158.2 allows all lawyers to include a significant amount of information about themselves, including preferred fields of practice, limitation of practice, and specialization. So long as everything in the LinkedIn profile is fact-based and not misleading, it is allowable.
Getting Granular: a Field-by-Field Guide to LinkedIn. Following are suggested approaches to the trickiest sections of a LinkedIn profile for California lawyers.
“Summary”: Focus on ensuring that no terms are false, misleading, or deceptive. (COPRAC’s Formal Opinion No. 2001-155 is as close as California authority comes to addressing LinkedIn; it refers directly to Rule1-400 and Section 6157, et seq.) As users populate this overview-type elevator speech, LinkedIn automatically suggests verbiage. Ostensibly, these suggested terms relate to the user’s background and may boost the profile’s SEO (search engine optimization) results. Practitioners may incorporate those terms into their summaries, provided they are strictly true. (Remember Section 6158: communications “must be factually substantiated.”)
Rule 1-400(D)(6) prohibits “certified specialist” labels unless the lawyer currently holds the required State Bar credential.5 Otherwise, Rule 1-400 does not prohibit use of the term “specialist.” Business and Professions Code Section 6152.2(b) expressly allows lawyers to describe “fields of practice, limitation of practice, or specialization.” For the reasons discussed below, it is prudent to avoid the term “specialize(d)” absent State Bar certification.
Caveat for immigration lawyers: Section 6157.5 imposes extensive controls on advertising for immigration-related legal services in electronic media.
“Specialties”: LinkedIn previously had a “Specialties” section that prompted the user to list special skills. In response to pressures from state bars, LinkedIn removed the “Specialties” section in March 2012, substituting “Skills and Expertise,” which became “Skills and Endorsements” (more about that below.) However, lawyers who created their LinkedIn profiles prior to March 2012 may find that they populated “Specialties” and that it is still included in their profiles. Rule 1-400(D)(6) prohibits using the term, in quotes, “certified specialist,” unless the lawyer holds a current certificate, while Section 6158.2 expressly allows statements about fields of specialization and is silent about certification. However, other states expressly prohibit references to specialization at all absent certification.6 Even if not prohibited, “specialties” could be misleading in context. Use the term with care or delete it.
“Skills & Endorsements”: In this section, the LinkedIn user lists individual skills. The user’s LinkedIn contacts may “endorse” any of those listed or even add new ones, which the user may accept or reject. These “endorsements” attach to particular skills and are not claims of success in particular matters or promises of similar results. Arguably, they would not trigger the disclosures required by Rule 1-400, Standard (2).7 But even if based in fact, they can be misleading.
For example, a lawyer might justifiably claim dispute resolution as a skill. But “dispute resolution” also describes a specific area of practice. Unless the lawyer actually practices in that area, listing it as a skill could be misleading. Solution? Go into the “Edit Profile” mode and make changes. Consider using the “turn-off” option to cancel contacts’ access to this feature. In this way, practitioners can exert greater control over the contents of their profiles.
Practitioners’ ethical use of business-focused social sites, such as LinkedIn, requires a thoughtful understanding of how the Rules of Professional Conduct might impact that use. If lawyers apply traditional approaches to new media, they can maximize impact while minimizing risk. With that in mind, counsel can make responsible choices in their use of business-oriented social media.
1 Allison C. Shields, “Communicating in the Online Era: Blogging and Social Media, ABA TECHREPORT 2013 available at http://www.americanbar.org/publications/techreport/2013.
2 COPRAC also maintains a Web page on Ethics and Technology Resources that lists opinions, articles, and MCLE programs on social media and related topics at http://ethics.calbar.ca.gov/Ethics/EthicsTechnologyResources.aspx.
3 See also COPRAC Formal Opinion No. 2012-186 for a related discussion of Facebook-related issues.
4 See Cal. R. of Prof’l Conduct R. 3-110(C) and proposed R. 1.1(c).
5 The member holds “a current certificate as a specialist issued by the Board of Legal Specialization, or any other entity accredited by the State Bar to designate specialists…”
6 See, e.g., the New York Bar Association’s Ethics Opinion 472 and the Philadelphia Bar Association’s Opinion 2012-8.
7 Standard (2) prohibits communications containing “testimonials about or endorsements of a member” unless it also contains an express disclaimer such as “this testimonial or endorsement does not constitute a guarantee, warranty, or prediction concerning the outcome of your legal matter.”
LACBA's Professional Responsibility and Ethics Committee welcomes new inquiries from LACBA members regarding ethical issues or concerns about professional responsibilities. The identity of the inquirer is kept confidential within the committee. The committee, however, does not publish formal opinions that are the subject of any pending litigation involving the inquirer. If you have an ethical question that you would like the committee to consider, you can mail your written inquiry to Los Angeles County Bar Association, Professional Responsibility and Ethics Committee, P.O. Box 55020, Los Angeles, CA 90055-2020, or e-mail your inquiry marked “Confidential” to Member Services at email@example.com .