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November 07, 2013 Practice Points

Users of LinkedIn, Beware!

By Emily J. Kirk

In the article "Users of LinkedIn, Beware!", which appeared in the Fall 2013 issue of the ABA Section of Litigation's Professional Liability e-newsletter, authors Karen Painter Randall and Steven A. Kroll discuss ethical and professional liability concerns attorneys and law firms should consider when establishing a social-media presence. Today, many attorneys are taking full advantage of social-media websites, such as LinkedIn, for advertising and business-development purposes. However, as the authors of this article point out, attorneys need to be aware of their individual state's rules and ethical opinions on using social-media websites to advertise and solicit clients.

One issue attorneys face when using LinkedIn is whether or not to accept "endorsements" of skills and expertise from their connections or to permit testimonials about their services to be posted on their page. Randall and Kroll caution attorneys from accepting these endorsements without first reviewing applicable ethical rules. For instance, ABA Model Rule 7.1 provides that an attorney is not to make any false or misleading claims about his or her services. A recent South Carolina ethics advisory opinion following this approach stated that information on business advertising and networking websites is deemed both a communication and advertisement, and information communicated must not be false, misleading, deceptive, or unfair. Thus, in the case of LinkedIn endorsements or testimonials, they are permitted as long as they meet these criteria. Other jurisdictions, such as Florida, however, have taken a stricter approach. A recent opinion by the Florida Bar's Committee on Advertising recommended prohibiting the endorsement of one's "Skills and Expertise" unless that attorney is actually certified in that area of practice. 

Ethical issues also arise out of listing areas of practice in the "Specialties" section of either attorneys' personal or law firm's webpages. Many jurisdictions strictly enforce what individual attorneys and firms can list as a specialty. New York, for example, prohibits law firms from listing the firm's services in LinkedIn's "Specialties" sections because New York Bar rules only permit individual attorneys to state that they are specialists if they have been certified in a particular area of law. However, law firms in New York are allowed to identify areas of practice.

Ultimately, at the current time, there are no uniform rules governing the use of social media by attorneys. Attorneys are responsible for knowing the rules in their own states and for implementing reasonable policies at their firms to regulate the use of social media.

Keywords: litigation, solo practitioners, small firms, social media, LinkedIn, professional liability, ethics, expertise, practice areas, state rules, advertisement, client solicitation, ABA Model Rule 7.1

Emily J. Kirk is with Thompson Coburn LLP in St. Louis, Missouri.

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