November 2013 | The Internet Marketing Issue
Social Media, Ethics, and “Expertise”: What’s a Lawyer to Do?
The good news? Lawyers are finally beginning to understand the impact of social media and many have begun to interact on a variety of social networks. The bad news? Legal ethics committees across the country have noticed this influx and have issued conflicting, and sometimes confusing, opinions regarding the ethical issues presented when lawyers interact online.
LinkedIn: An Unintended Ethical Minefield
For many lawyers, LinkedIn seems to be the “safest” site with which to test the social media waters, in large part because LinkedIn holds itself out as the “professional” social network, an idea that many lawyers find appealing.
Not surprisingly, LinkedIn is the most popular social media site among lawyers. In fact, according to the American Bar Association’s 2013 Legal Technology Survey, more than 98 percent of individual lawyers who responded to the survey reported that they use LinkedIn.
Interestingly, even though LinkedIn is used primarily for professional networking, it nevertheless presents a number of potential ethical pitfalls for lawyers. For example, for years, many speculated that the now-defunct (on individual profiles) “Specialties” field that was included by default on LinkedIn profiles was problematic since it arguably violated the ethical rules which prohibit lawyers from stating an area of specialization for which they were not certified.
That issue became moot in March 2012 when the “Specialties” designation was replaced on individual profiles, but not on “Company Pages,” with the new term “Skills and Expertise.” But, as you will soon see, according to some ethics committees, even that terminology has the potential to be problematic, since it can arguably be misleading to legal consumers.
Philadelphia Bar on “Skills and Expertise”
The first ethics committee to address this issue was the Professional Guidance Committee of the Philadelphia Bar Association in Opinion 2012-8. The committee was tasked with determining whether an attorney could ethically list his or her areas of practice in the “Skills and Expertise” section” and if so, could the attorney also use the proficiency categories under the “Skills and Expertise” section, which permit the lawyer to indicate the level of skill proficiency as a beginner, intermediate, advanced or expert.
The committee concluded that a lawyer may list practice areas under the LinkedIn heading “Skills and Expertise” since doing so is akin to listing practice areas on law firm websites. However, the committee reached a different decision regarding the sub-categories of that section that permit the LinkedIn user to indicate that he or she is an “expert” in a particular practice area. The Committee advised that doing so could mislead a potential client in violation of Rules 7.1 and 7.4 to believe that the lawyer was a “specialist” in that area. Thus the Committee concluded that “while the inquirer may list her practice area under the general category of “Skills and Expertise” ... the inquirer may not categorize herself as expert or as an “expert” or for that matter “experienced” outside of the parameters of Rule 7.4...”
New York Bar on “Specialties”
The New York State Bar Association Committee on Professional Ethics addressed a similar issue in June 2013 in Opinion 972. Interestingly, in this opinion, the committee considered whether a lawyer or law firm could list areas of practice under the “Specialties” category -- which no longer appears on individual profiles but can still be found on “Company Pages.”
The committee concluded that only individual lawyers certified as specialists in an area of practice could list those areas of practice under the “Specialties” heading, assuming the disclaimer provisions of Rule 7.4(c) were met. Of course, since that category was removed from individual lawyer’s profile pages over a year before this opinion was issued, this particular conclusion is essentially meaningless.
The committee also concluded that non-certified lawyers and law firms could not list areas of practice under the “Specialties” heading. Again, while this holding is moot for individual lawyers, it does provide guidance for law firms that have set up “Company Pages” and clarifies that areas of practice cannot be listed under “Specialties.”
Another interesting issue raised in this opinion, but which the committee declined to address, was whether Rule 7.4 would be violated if “a lawyer or law firm could, consistent with Rule 7.4(a), list practice areas under other headings such as ‘Products & Services’ or ‘Skills and Expertise.’”
So, while the ethics of doing so remains up in the air in New York, lawyers and law firms in all jurisdictions would be wise to think twice before listing their areas of practice under those sections of their LinkedIn profiles. This is because even though doing so passes muster in Philadelphia, as you will see below, the Florida Bar recently reached a contrary decision.
Florida Bar on “Skills and Expertise”
The Florida Bar has addressed the permissibility of listing practice areas under the “Skills and Expertise” category on two occasions.
First, in April 2013, the Florida Bar issued social media advertising guidelines for its attorneys. The guidelines addressed a number of ethical issues that can arise when lawyers interact on social media sites, including the issues surrounding categorizations on sites that might imply “expertise” in an area of law to legal consumers. In that regard, the guidelines emphasize that lawyers have an obligation to avoid misleading the public: “Regulations include prohibitions against any misleading information, which includes references to past results that are not objectively verifiable, predictions or guaranties of results, and testimonials that fail to comply with the requirements listed in Rule 4-7.13(b)(8).
Regulations also include prohibitions against statements characterizing skills, experience, reputation or record unless they are objectively verifiable. Lawyers and law firms should review the lawyer advertising rules in their entirety to comply with their requirements.”
This same issue was addressed by the Florida Bar just a few months later, with the issuance of a September 11 advisory advertising opinion. In this opinion, the committee reached a decision that was contrary to the Philadelphia decision discussed above, concluding that lawyers who are not certified in a practice area “may not list areas of practice under the header ‘Skills & Expertise’ even if it was noted elsewhere on their LinkedIn profiles that they are neither certified nor an ‘expert.’”
Of course, the Florida Bar tends to issue the most restrictive opinions when it comes to lawyers’ social media interactions, so lawyers in other jurisdictions should keep that in mind and avoid blindly following the Florida Bar’s determination. Nevertheless, these opinions are instructive and indicate that lawyers should proceed with caution, and carefully consider their jurisdiction’s past holdings regarding listing skills, expertise, and specialties, whether on or offline.
In other words, let someone else be the test case. After all, it’s better to be safe than sorry!
Nicole Black is an attorney and a director at MyCase, a cloud-based law practice management platform. She can be reached at firstname.lastname@example.org.
LAW PRACTICE TODAY
Micah U Buchdahl, HTMLawyers, Inc
Allison C. Shields, Legal Ease Consulting, Inc.
Andrea Malone, White and Williams LLP
BOARD OF EDITORS
Janis Alexander, Ambrose Law Group LLC
David Ambrose, Ambrose Law Group LLC
Leah Beckham, BillBLAST
John Bowers, Fox Rothschild LLP
Amy Drushal, Trenam Kemker
Chase Edwards, Paul M. Hebert Law School, Louisiana State University
Nicholas Gaffney, Infinite Public Relations
Nancy Gimbol, Eastburn and Gray, P.C.
Richard Goldstein, Goldstein Patent Law
Katy Goshtasbi, KG Consulting Group Inc, d/b/a Puris Image
Alan Craig Haston, The Haston Law Firm, P.C.
William Henslee, Florida A&M University College of Law
Kathryn M Jakabcin, Young Conaway Stargatt & Taylor LLP
James Matsoukas, Pierce Atwood LLP
Lisa McBee, Roberta F. Farrell, LLC
Thomas "Jason" Smith, Duff & Phelps, LLC
Jay Roderik "Rod" Stephen, The Stephens Law Firm
Pegeen Turner, Turner IT Solutions, Inc.
Gabriela Vega, Vega Acosta Law Firm, Chtd.
James Zych, Greensfelder, Hemker & Gale, P.C.
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