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.