The following is a guest blog post by Los Angeles attorney Eli S. Cohen. Eli handles all civil litigation matters, with specific focus on class action, employment, and real estate law.
Lawyers’ use of LinkedIn and other social media channels is skyrocketing, but beware of the ethical issues lurking there, and take action so that you are not the star of the next ethics opinion.
Here are some of the areas where ethics issues might arise on LinkedIn:
1. Skills & Endorsements. How often do you get endorsed by a connection whom you haven’t met and can’t attest to your skills? One California ethics opinion held that both the Rules of Professional Conduct and the Business and Professions Code applied to social media posts, depending on the purpose of the content. Because California Rule of Prof Cond 1-400 is extremely broad, it wouldn’t be surprising that your online profile, which is broadcasted to the public at large, is an advertisement about your services. Thus, endorsements must not mislead or raise unjustified expectations.
To deal with this endorsement issue, you can
- hide this section completely,
- remove an endorsement,
- refuse to accept endorsements from anyone unfamiliar to you, or
- add an express disclaimer, such as: “any testimonial or endorsement does not constitute a guarantee, warranty, or prediction on the outcome of your legal matter.”
Appending a “specialties” category to the LinkedIn profile summary is fertile ground for ethics violations. In California, an attorney can’t hold him or herself out as a “certified specialist” absent state certification. Although Rule 1-400 explicitly modifies the word “specialist” with “certified,” the implication of associating those two words often go hand in hand and would likely still violate the rule. Lawyers who haven’t been certified and just want to see a boost of views resulting from SEO and keyword marketing are misleading prospective clients in violation of Rule 1-400(D)(6).
The bottom line is that, at least in California, you better not say you are a “specialist” unless you truly are.
2. Viewing Activity & Juror Contact. When you view someone’s LinkedIn profile while logged into your own account, the profile holder will be notified that you viewed his or her profile page. There can be ethics risks accompanied by attorneys’ use of this feature during jury selection or at trial. A recent ABA ethics opinion held that the social media provider, not the attorney, is communicating with the juror, and thus the fact that a juror may become aware that an attorney is reviewing his or her LinkedIn profile doesn’t constitute a prohibited communication from the attorney. But the California Rules of Professional Conduct imply otherwise. Rule 5-320 prohibits attorneys from communicating directly or indirectly with jurors as well as conducting “an out of court investigation…in a manner likely to influence the state of mind of such person in connection with present or future jury service.” A notification that the plaintiff’s counsel, for example, is viewing a juror’s LinkedIn profile may influence the juror’s state of mind in connection with a verdict. It may also be considered an indirect communication. Avoid this issue by changing your privacy controls to be totally anonymous or viewing others’ profiles while logged out.
3. Unauthorized Practice of Law. Lawyers can’t assist any person or entity in the unauthorized practice of law. Cal Rules of Prof Cond 1-300. How can you assist a non-lawyer in the unauthorized practice of law on LinkedIn? Take a look at your profile and see if you’ve uploaded any documents or legal templates. New attorneys might fall into this trap in trying to showcase their writing samples to prospective employers and clients. A legal work product, even with redacted confidential information, can lead to the unauthorized practice of law if it falls in the wrong hands. A non-lawyer, e.g., a real-estate agent, banker, or insurance adjuster, may use your legal work to negotiate settlements, interpret contract terms, and engage in other unauthorized lawyerly activities.
There’s an old saying: “It takes a lifetime to build a good reputation but only a moment to destroy it.” Integrity is everything in our profession. Stay up-to-date with ethics rulings, review your LinkedIn profile and online activity carefully, and take steps to avoid any ethics violations.
For more on the ethical issues relating to attorney online advertising in general, turn to CEB’s Internet Law and Practice in California, chapter 17.