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Stop the Madness: How The NYCLA’s Ethics Opinion on LinkedIn Forces Lawyers To Act Deceptively And Violate Linked In’s User Agreement.

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Deceive – to mislead by a false appearance or statement

By now, in 2015, most of the general public over the age of 21 have been using Google, Facebook and LinkedIn for nearly a decade. During that time, they’ve acclimated to the culture of each of these online universes, and grown as adept in distinguishing casual informational websites and biographical profiles and chatty personal exchanges from paid advertising as a seasoned world traveler in recognizing an American tourist.

Yet while the majority of online users with an IQ over 80 understand the prevailing online social order, apparently bar regulators do not. So like imperialists swooping in to “civilize” native colonies, comes now the 100-year old  New York County Bar Association (NYCLA) to inflict its ethics rules on LinkedIn through the issuance of Formal Opinion 748 . As summarized by Allison Shields and Nicole Black, Formal Opinion 748 purports to offer lawyers guidance on when a LinkedIn profile constitutes advertising and when it doesn’t. Not surprisingly, this devolves into an exercise in hair-splitting: pure biographical information consisting only of one’s education and employment history isn’t advertising, but a description of practice areas, skills, endorsements – and even a detailed description of work performed for a former employer is.  And of course, as we all know, once the regulators classify something as advertising, we can’t disseminate it to the public without first marking it with a big scarlet A, er – disclaimer.

And therein lies the problem. Because slapping the phrase “this constitutes lawyer advertising” in the context of the LinkedIn universe causes MORE confusion for the public. When potential clients see a scarlet “A” on a lawyer profile, they’re going to assume that the lawyer paid for the ad and that it’s inherently less truthful than the other non-advertorial profiles on LinkedIn. Worse, users are likely to draw inaccurate conclusions – either that the lawyer is doing well enough to pay for a spendy ad on LinkedIn, or is so desperate that he can’t find clients without paying for social media exposure. Either way, requiring lawyers to include an advertising disclaimer on an otherwise ordinary LinkedIn listing has the effect of “misleading by creating a false appearance” and therefore, is deceptive.  

Because an advertising disclaimer makes lawyers look worse on LinkedIn, some might not recognize it as deception. After all, we ordinarily associate deceptive or misleading conduct with puffery or exaggerated claims of expertise designed to attract rather than repel clients. But deception is deception whether it conveys a false positive or negative impression.

Not only does NYCLA’s Formal Opinion cause confusion for the public, but there’s an argument to be made it would force lawyers to violate LinkedIn’s User Agreement as well, which forbids users from posting “unsolicited advertising.”  Of course, LinkedIn doesn’t consider user profiles to be advertising – but if NYCLA forces lawyers to characterize profiles as ads, then posting a profile labeled as advertising would be inconsistent with LinkedIn’s user agreement.

Although I’m not a fan of ethics restrictions, perhaps I could abide Formal Opinion 748 if NYCLA had shown a pattern of consumers duped by a lawyer’s LinkedIn profile. But there’s no record, or even anecdotal evidence of widespread LinkedIn fraud on consumers. Moreover, given the demographics of LinkedIn , its users are amongst the least likely group needing protection: over 38 percent are college educated, and 21 percent earn over $75,000/year. In any event, Formal Opinion 748 is that NYCLA doesn’t even pretend that it has client interests in mind. If you don’t believe me, search the opinion right here – you won’t find any references to consumers or deception or protecting the public. Instead, Formal Opinion 748 is all about lawyers being lawyers – perpetually in search of a problem, like a first-year law student on an exam, and robotically applying ethics rules without context or common sense.

Legal futurist Jordan Furlong has already warned that lawyers are at risk of irrelevance due largely to their own actions.  And NYCLA’s Formal Opinion 748 is Exhibit A of that conduct. Rather than taking the time to help lawyers operate ethically in an online culture, regulators prefer putting up walls to make it more difficult for lawyers to play with the rest of the public. The end result isn’t a public that’s protected but rather, a public that will turn to non-lawyer providers who aren’t subject to these nonsensical restrictions.  And the regulators will no longer have to worry about whether lawyer advertising is misleading – because the public won’t be buying.

  • shg

    NYCLA is the New York County Lawyers Association, not the New York County Bar Association. And neither is a “bar regulator,” but private membership organizations with no authority over lawyers. The sky is not falling.

  • CrustyMcFusty-just made it up!

    It is actually the New York County Lawyers’ Association (the apostrophe is after the “s”).

    You really think the alleged scarlet letter A is going to phase the folks who see sponsored content (labeled and unlabeled) on Facebook, Twitter, Instagram, Buzzfeed and Google? The kids don’t distinguish one from the other (this can be bad or good depending on your point of view). NY’s regulations are bad, but you’re making a mountain out of a molehill because who cares if there’s a disclaimer? Who reads them? Do you think anyone reads or follows LinkedIn’s Terms of Service, or any other website’s TOS? This post reads like manufactured outrage to generate clicks and heat. I like and admire you, but if you think it is wrong, write your own ethics opinion and submit it to NYCLA or another bar association. Of course, these ethics have NO force of law and are as easily rejected as accepted by the courts who have the final say on ethics. Maybe the 1st Department will cite you instead of NYCLA in their final say given the new reality?

  • CrustyMcFusty

    No response–I guess it didn’t generate enough click bait for you to write your own draft ethics opinion.

  • myshingle

    Actually, I think that is a really good suggestion. I have been wanting to provide more substantive guidance on ethics for a long time now but I’m just too busy with my day job right now.

  • Andrew Cabasso

    Great post. I’m not a fan of the ethics op either.

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