The NY City Bar’s Holiday Gift to Big Law and Legal Marketers: LinkedIn Spam Isn’t Lawyer Advertising

Unlike solos and smalls who live under the microscope when it comes to ethics regulation for advertising, big law attorneys had no such problems. After all, until ten or fifteen years ago, most big law attorneys didn’t do much more than list in a lawyer directory like   Martindale Hubbell or post a bio on the firm website.

But with the introduction of social media, and sites like LinkedIn and Twitter gaining traction with big law legal marketers, all of a sudden, big firm attorneys find themselves bound up with the common folk as regulators in Pennsylvania and New York started treating more robust LinkedIn profiles as lawyer advertising. All of a sudden, big law attorneys would have to comply with the onerous advertising regulations that have oppressed the small fry for years – posting hideous THIS IS LAWYER ADVERTISING disclaimers on substantive content (which undermines its credibility) and printing out copies of websites and profiles and keeping records for years.

Now, all of these requirements might be enough to deter big law attorneys from using their LinkedIn profiles as anything more than a glorified profile. And that might not be such a bad thing, except that big law marketing is big business for vendors and consultants and even tech startups like JD Supra and Clearview Social that have made distribution of articles on LinkedIn the focal point of their business plans.

But big law and the parasites that feed off it need not worry any longer. Last month, the Association of the New York City gave lawyers the gift of  Formal Opinion 2015-7 which adopts the presumption that LinkedIn profiles are not attorney advertising unless it is shown that the purpose of the profile is for pecuniary gain. Moreover, the opinion expressly states that lawyer use of Endorsements and Recommendations or LinkedIn’s Pulse feature (that allows for easy dissemination of blog posts and articles to other users) do not transform an otherwise innocent profile into an evil advertisement.

The opinion is fine as far as it goes, but here’s the hypocrisy. What if a LinkedIn profile is maintained not by a lawyer but by an army of marketers? What if the “content” that’s distributed is curated and disseminated by a marketing vendor? Isn’t payment to a marketing consultant to operate a LinkedIn profile evidence of intent to use it to attract paying clients and thus classify it as advertising? The Bar’s opinion is notably silent on this point.

Look – I don’t think that ethics regulators should be getting into the weeds in regulating lawyer advertising. Just a simple “no deception” standard, applicable to all communications, does fine, thank you very much. Plus, as before, it’s pure folly to think that regulators can keep up with changing technology and public opinion. But having chosen to go down the path of platform-specific regulation, regulators shouldn’t be picking winners and losers – approving certain platforms and practices (and giving them a competitive advantage) while unduly burdening others. Call me a cynic, but I can’t help thinking that big law and big firm marketers were behind this most recent NYC Bar ruling – and while reduced regulation is always a win for lawyers and clients, it would be nice if regulation were lightened across the board and not just when it benefits certain sectors of the bar.