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Why New York’s Recent Ethics Opinion on LinkedIn Shows the Folly of Regulating the Minutia of Social Media

by Carolyn Elefant on August 30, 2013 · 4 comments

in Ethics & Malpractice Issues, Future Trends, Social Media

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Lawyers’ ethical obligations when using social media may be summarized in a single graphic:
NodeceptionYet rather than invoke the simple litmus test of whether a communication is deceptive to a reasonable viewer to evaluate lawyer advertising, disciplinary committees feel compelled to spill thousands of words analyzing the ethics of each and every feature of each and every iteration of each and every social media platform.  A recent New York State Bar Association (NYSBA) ethics decision, Ethics Opinion (EO) 972  on lawyer use of LinkedIn’s “specialty” features highlights the folly of that approach.

EO 972 responded to an inquiry about whether a lawyer or law firm can list certain services provided on a social media site that includes a section labeled “Specialties.”  The “specialties” question is one that legal ethicists have speculated about for some time, observes Nicole Black in her New York Daily Record column, since many ethics rules prohibit lawyers from stating that they “specialize” in a particular area of law unless they have some type of state-bar sanctioned certification.  In fact, Niki and I flagged this issue in our book,  Social Media for Lawyers  that was published more than three years ago.

Ultimately, EO 972 concluded that listing practice areas under a heading of “Specialties” would constitute a claim that a lawyer or firm is a specialist in a particular field of law and thus, absent certification would violate  New York Rule of Professional Conduct 7.4(a) ‘s bar on lawyers identifying themselves as specialists.

Sounds straight forward enough – but here’s the kicker:  THE OPINION IS ALREADY LARGELY OBSOLETE!! That’s because as of March 2012, LinkedIn deleted the Specialties Option entirely, and replaced it with the Skills and Expertise section for individual lawyers (though a “Specialties” section remains for company profiles; Mootus has several screenshots of New York law firm LinkedIn Profiles that prominently list specialties but I think they’ve since been removed). The New York decision expressly states that:

 “We do not in this opinion address whether the 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 essentially, New York issued an ethics opinion that addresses a question that is irrelevant for individual lawyers with a profile on LinkedIn. What a waste!  Although to be fair, the opinion doesn’t mention LinkedIn by name (so arguably applies to other sites that have “Specialties” listings), let’s be real: other than LinkedIn, there aren’t any other social media sites widely used by lawyers that include a “Specialties” section.  I’m not necessarily criticizing New York for being slow to act – though we can assume that the opinion, issued in June 2013, was at least a year in the making since LinkedIn had done away with the Specialties listing by June 2012. Rather, the problem is that social media changes so rapidly and without any warning that even if a bar could issue a timely ethics opinion within a matter of weeks, the opinion would still have a short shelf-life.

But what’s far, far worse than the wasted resources is that in trying to clarify an issue that no longer exists, New York has a chilling effect on lawyers who may want to set up a profile on LinkedIn and avail themselves of all of the features. Many lawyers who read EO 972 will assume that it prevents lawyers from all types of pre-set descriptions – including the new Skills & Expertise category. Indeed, that’s the takeaway at The Ethical Quandary which concludes that firms should “be careful about the context in which your law firm describes its areas of practice. Apparently headings matter.”

But as I read New York’s rules (and I’m licensed in NY and as much of a guru (NOTE – I didn’t say expert) on ethics with more than 175 posts on ethics under my belt), I don’t see anything in Rule 7.4 that would prevent lawyers from using the Skills and Expertise section of LinkedIn. New York’s version of Rule 7.4 only prevents lawyers who aren’t certified from listing themselves as specialists. New York’s version of Rule 7.4 does not expressly prohibit use of the term expert or expertise:

 A lawyer or law firm may publicly identify one or more areas of law in which the lawyer or the law firm practices, or may state that the practice of the lawyer or law firm is limited to one or more areas of law, provided that the lawyer or law firm shall not state that the lawyer or law firm is a specialist or specializes in a particular field of law, except as provided in Rule 7.4(c).

(NOTE – Apparently, there is a Nassau County bar opinion, referenced here  that says that lawyers cannot refer to themselves as experts without a certificate but not sure how that ruling was reached. Not surprisingly, I can’t access the decision online)

By contrast, the same isn’t true for South Carolina, where its version of Rule 7.4 expressly prohibits use of the term expert and expertise:

(b) A lawyer who is not certified as a specialist but who concentrates in, limits his or her practice to, or wishes to announce a willingness to accept cases in a particular field may so advertise or publicly state in any manner otherwise permitted by these rules. To avoid confusing or misleading the public and to protect the objectives of the South Carolina certified specialization program, any such advertisement or statements shall be strictly factual and shall not contain any form of the words “certified,” “specialist,” “expert,” or “authority” except as permitted by Rule 7.4(d).

Thus, the South Carolina bar sent an alert to members  to remind them of Rule 7.4’s prohibition on SC lawyers’ ability to publicly display the Skills & Expertise section of LinkedIn. Though I disagree with South Carolina’s position, it’s grounded on the state’s overly restrictive version of Rule 7.4. New York’s rule is not as tightly limited – and had New York intended this level of restriction, it could have copied the South Carolina version, which was in effect when New York updated its rules in 2009.

What’s the upshot of all of this mumbo-jumbo?  Just a lot more confusion for lawyers — and little if any protection of consumers. Meanwhile, companies that compete with lawyers – like Axiom Law (which consigns lawyers to corporate legal departments) or Rocket Lawyer (which provides legal forms to consumers) can continue along their merry way listing specialties because they’re not lawyers.

Screen shot 2013-08-30 at 11.33.44 AM

Screen shot 2013-08-30 at 11.32.55 AM

I’m not suggesting that the bars relax regulation of lawyers using social media.  But when it comes to the ethics of social media, one small graphic combined with a little bit of common sense is worth not just 1000 words but thousands of dollars in savings as well.

  • Megan Hunt Dell

    I’m a South Carolina lawyer and presented a 1-hour CLE about the ethics of social media marketing just this week. Much of my presentation revolved around LinkedIn’s use of the words “expertise” and the endorsement feature, which arguably, triggers our testimonial/endorsement rules too. I think this is one area where the ABA should lead the way in overhauling the Model Rules.

  • myshingle

    I find South Carolina’s rules on attorney use of the endorsement/testimonial feature of Linked In to be highly, highly problematic – I believe that it stifles speech by third parties by making it difficult for colleagues and clients to give endorsements. So you are right to note that they are relevant to discussion of LinkedIn (though beyond the scope of this post). That said, the overarching rule should be “no deception” and avoiding the minutia of this platform or that because there will always be platforms that we don’t see.

  • Will Hornsby

    Carolyn, nice post as you illustrate the challenge of the ethics community to provide direction on the very dynamic tech-based marketing platforms. However, let’s look for the value here. First of all, we need to note what an ethics opinion does. They are not the rules themselves, but application of the rules to factual circumstances. Whether or not we like the outcome, they merely give us an interpretation of the rules as they apply to certain of our endeavors. For nearly 20 years, states have issued ethics opinions commenting on Internet-based technologies and they have always – always – said the same thing. The rules are the rules and they apply to what we do regardless of whether those rules were promulgated without any understanding of the capacity or operations of the technology. In this case, we now know in NY that the rules governing specialization apply to the use of “specialize” or “specialist” when it is a templated term on a social media site. That should be good to know. Lawyers do not need to guess whether they can be listed on any social media site as specialist. They know that they can if doing so is in compliance with the rules and they cannot if it is in violation of those rules. No chilling effect here.
    I think it is unfortunate that the committee issuing the opinion chose not to tackle the use of “expertise” or its variations. This is governed by another rule among the states, that which prohibits false or misleading communications. Before 2002, Rule 7.1 of the ABA Model Rules of Professional Conduct prohibited communications that created an “unsubstantiated comparison” of the lawyer’s services to those of another lawyer. Terms like “best and brightest,” “top notch” and “expert” have been deemed to be unsubstantiated comparisons and a violation of this rule. The ABA dropped that provision from the Model Rules, but about half the states still have it. New York has a unique take on this. A communication can characterize the quality of the lawyer’s services, but only if that characterization can be factually supported and is accompanied by a disclaimer. This may lead us to the conclusion that lawyers who participate in social media platforms where they are identifed as “experts” or having “expertise” would only be permissible if verified and accompanied by the disclaimer. Because, hey, the rules are the rules.
    One soluiton toward goverance that is based fundamentally on a prohibition of deceptive communications would be ubiquitous adoption among the states of the ABA Model Rules governing the communications of legal services.

  • myshingle

    Will,
    Thank you for weighing in. While I agree that the rules are clear cut, the context is not. As you point out, bar rules have prohibited use of terms like specialize and expertise for decades – and when an attorney advertises on his or her own website that makes sense. But the prohibition doesn’t make sense on social media sites with designated headers like Skills & Expertise or Specialists where attorneys are advertising side by side with all types of professions. I think it’s unlikely that a consumer will believe that the lawyer is an expert or specialist merely because of a listing under a uniform heading. Under the “deception” test, listing oneself under Specialist or “Skills and Expertise,” is not deceptive – because consumers wouldn’t believe that the lawyer is an expert in that area since they realize that it’s a uniform listing convention. By contrast, a litigator who says “Tax Specialist” on a website when he’s never done a day of tax in his life is clearly deceptive.
    Having states all adopt the ABA code is one solution – I certainly agree with uniformity and ABA is a good a place as any so long as it gets rid of the copyright on its opinions. But really – don’t you think it’s time for ethics compliance to come into the 21st century? Shouldn’t there be data bases where a law firm could type in a string of text and have a little red flag come up if there’s a potential problem? Shouldn’t all the ethics hotlines feed their opinions into a data base so lawyers could get the benefit of those opinions? There is so much sophistication in the compliance world for securities, corporate, CFTC – really we lawyers want to be business people but we are light years behind on the compliance front. Not you, Will – but many others in your space.

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