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

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.

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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.