Lawyers and LinkedIn now go hand-in-hand; most private practitioners (among many other types of lawyers) are on LinkedIn. But does a LinkedIn profile constitute a form of attorney advertising (and therefore have to comply with all of the ethical restrictions on legal advertising)? Probably not, at least according to the recent ethics opinion of the New York City Bar. See NYCBA Ethics Op. 2015-7.
This new opinion splits “sharply” from the ethics opinion of the New York County Lawyers Association, which had “conclude[d] that a LinkedIn profile containing only one’s education and a list of one’s current and past employment . . . does not constitute attorney advertising.” NYCLA Ethics Op. 748 (2015). Under this reasoning, then, many if not most lawyer profiles and other activity on LinkedIn do constitute attorney advertising. Lawyers often, for example, post information about trial or appellate victories, describe their practice areas, and receive endorsements and recommendations from colleagues and clients (among others). As discussed below, such “attorney advertising” may face ethical restrictions (e.g., mandatory disclaimers or record-keeping requirements) in certain states.
Eluding these restrictions, the new city bar opinion reasons that LinkedIn activity constitutes attorney advertising “only if it meets all five of the following criteria: (a) it is a communication made by or on behalf of the lawyer; (b) the primary purpose of the LinkedIn content is to attract new clients to retain the lawyer for pecuniary gain; (c) the LinkedIn content relates to the legal services offered by the lawyer; (d) the LinkedIn content is intended to be viewed by potential new clients; and (e) the LinkedIn content does not fall within any recognized exception to the definition of attorney advertising.” In light of this long list of prerequisites, the opinion unsurprisingly concludes that regulators should not “presume” that “the primary purpose [of] an attorney’s LinkedIn content is to attract new clients for pecuniary gain, unless it contains express language or other equally compelling evidence to support that conclusion.” NYCBA Ethics Op. 2015-7. This practice point answers below: (1) why the differing approaches in these ethics opinions; and (2) what do they mean, if anything, to the busy practitioner.
States such as New York, Florida, and Texas (among several others) impose detailed requirements and restrictions on legal advertising, unlike the ABA’s Model Rules of Professional Conduct, which impose only relatively modest restrictions. (Although all states except California have essentially adopted the Model Rules, many states have—for better or worse—tinkered with their particular rules on legal advertising.) Had the city bar concluded that most profiles or updates on LinkedIn constitute the feared “attorney advertising,” New York lawyers would presumably have to comply with the corresponding regulations, “including, but not limited to: (1) labeling the LinkedIn content ‘Attorney Advertising’ [either in the profile page’s summary section or in the applicable update]; (2) including the name, principal law office address and telephone number of the lawyer; (3) pre-approving any content posted on LinkedIn; [and] (4) preserving a copy for at least one year. . . .” NYCBA Ethics Op. 2015-7. In other jurisdictions, however, lawyers do not have these worries because their rules omit many of these requirements, rendering almost irrelevant the fact that most LinkedIn activity (at least implicitly) advertises the posting lawyer’s services, skills, and availability.
But what does the split in the ethics opinions mean for lawyers (the vast majority of whom have LinkedIn profiles)? It means that lawyers who would like to proceed cautiously should follow the first approach, i.e., the more restrictive approach. In other words, if the lawyer’s profile goes much beyond educational background and employment history, the lawyer should comply with the jurisdiction’s advertising restrictions. Furthermore, if the lawyer practices (and advertises) in two or more states, one of which has detailed advertising requirements, the lawyer generally ought to follow the more restrictive requirements (i.e., practice “double deontology”). For lawyers taking an arguably less cautious approach, the new ethics opinion will provide a bit of corroboration. Under this approach, a lawyer may post additional information on LinkedIn without automatically being engaged in attorney advertising. For example, “the inclusion of Endorsements or Recommendations does not, without more, make the lawyer’s LinkedIn profile an ‘advertisement.’” NYCBA Ethics Op. 2015-7. Whether the lawyer’s primary purpose is attorney advertising depends on “the subjective intent of the lawyer who makes the communication, but that this intent may be inferred . . . from other factors, including the content of the communication and the audience for the communication.” In short, much LinkedIn activity will not be considered advertising (at least not under New York’s “primary purpose” test), but identifying advertising activity will be highly context-dependent.
LinkedIn currently offers powerful networking potential and provokes many interesting ethical questions (e.g., should you send a connection request to a judge before whom you might appear, see Ariz. Judicial Ethics Op. 14-01 (2014), or should you remove from your profile page inaccurate endorsements or recommendations, see Pa. Ethics Op. 2014-300; N.C. Ethics Op. 8 (2012)). As the dueling New York approaches above suggest, the answers are not always unanimous.
— Keith Swisher, Swisher P.C., Phoenix, AZ