Any good lawyer joke will tell you that the legal profession is facing its share of ethical hurdles, and the rise of social media lumps on a new set of challenges. Facebook, Twitter, LinkedIn, and Snapchat have become some of the largest web-based companies in the market over the last several years. These massive social networks and the social media boom put the ethical underpinnings of the legal profession to the test.
In particular, reevaluating the profession’s presence on LinkedIn will probably not be the only test to traditional “Attorney Advertising” rules.
This month, the New York County Lawyers Association Professional Ethics Committee (“Committee”) raised its eyebrows at the ways in which LinkedIn is “connect[ing] the world’s professionals to make them more productive and successful.” In response to the “access to people, jobs, news, updates, and insights that help you be great at what you do,” the Committee is requiring attorneys check in on and maintain accurate profile content.
The extent to which this monitoring requirement will apply to other social media outlets is unclear: “[t]his opinion addresses the fields, headings, and protocols of LinkedIn as they exist on the date of this opinion. The [C]ommittee cannot anticipate changes or additions to this or other social networking sites, and limits this analysis to the site as of the date of this opinion.”
What is clear is that identifying areas of law as specialties violates New York Rule of Professional Conduct 7.4. LinkedIn is problematic in that its default headings, “Skills,” “Endorsements,” and “Recommendations,” fall within a grey area of Rule 7.4. Endorsements and recommendations are particularly complicated in that they appear on the endorsees profile even though the author is another LinkedIn member. However, because LinkedIn users control information displayed on their profiles, including endorsements and recommendations, “attorneys are responsible for periodically monitoring the content of their LinkedIn pages at reasonable intervals. To that end, endorsements and recommendations must be truthful, not misleading, and based on actual knowledge pursuant to Rule 7.1.” The Committee is careful to note that ordinary biographical information is not considered advertising. Subjective material on the other hand may run up against New York Rule of Professional Conduct 7.1.
Although the Committee purports to speak only to LinkedIn profiles, the Pennsylvania Bar Association spoke more broadly in 2014, “emphasizing that an attorney must monitor his social networking websites.”
These are only the first attempts to address the issues presented by the social media boom. LinkedIn’s place as the preeminent professional networking site puts it at the forefront of emerging conundrum posed by social media. Going forward, there will certainly be other platforms that push the envelope of ethical rules in place for lawyers. What if the site is not designed for professionals to interact? Should attorneys be held to a different standard in terms of their online social presence? While LinkedIn has a significant membership, it is dwarfed by the giants of the social networking arena like Facebook and Twitter. As these larger social media sites test the limits of legal ethics, the initial efforts of New York and Pennsylvania to require monitoring of lawyers’ web-presence will only continue to expand.