The ethics guidance interpreting “Attorney Advertising” rules in the social media context continues to evolve, but this time the evolution appears to be for the better, taking into account the realities of the growing use of social media. As you may recall, early last year, the New York County Lawyers Association (“NYCLA”) weighed in on the ethical implications for lawyers using LinkedIn and suggested that attorneys using the self-proclaimed “World’s Largest Professional Network” needed to beware that their posts on that site, even the most casual, did not run afoul of the attorney advertising rules. Now, however, a recently published Formal Opinion of the Committee on Professional Ethics of the Association of the Bar of the City of New York (“City Bar”) has called into question the scope and applicability of the NYCLA opinion, recognizing that use of ethic rules developed for a pre-social media world in a post-social media context may be akin to attempting to fit a square peg into a round hole. As the City Bar acknowledged: the current attorney advertising rules “defy easy extension to the digital world and, in particular, to social media content.” The difficulty of applying the rules of ethics to lawyers’ social media activities, however, has not stopped lawyers from using social media websites — particularly LinkedIn — for professional self-promotion. The new City Bar opinion, however, sets forth a test that might make it easier for attorneys to navigate their responsibilities while continuing to document their achievements, both personal and professional on the internet.

As mentioned, early last year NYCLA issued Formal Opinion 748 which offered guidance on the issue of attorneys’ use of LinkedIn (see my prior post entitled “Ethical Rules for Social Media Gain Clarity“) and concluded that, provided the word “specialist” is not used, lawyers may list skills or practice areas under LinkedIn’s predefined headings “Experience” and “Skills” but must “monitor their LinkedIn pages at reasonable intervals to ensure that others are not endorsing them as specialists.” The NYCLA Opinion advised lawyers to monitor their profiles for truthfulness “at reasonable intervals,” without providing guidance as to what constitutes a reasonable interval, and concluded that a New York lawyer’s LinkedIn profile that includes information other than his or her educational and employment history should include the words “Attorney Advertising” and all required disclaimers.

Last month, the City Bar issued Formal Opinion 2015-7, which concurred in part with NYCLA but diverged significantly on the issue of when a LinkedIn profile is an advertisement. Unlike the NYCLA Opinion, which concluded that a LinkedIn profile that includes a detailed description of practice areas and work done in prior employment requires disclaimers, Formal Opinion 2015-7 concludes that a lawyer’s individual LinkedIn profile constitutes attorney advertising only when five specified criteria are met:

“(a) it is a communication made by or on behalf of the lawyer;

(b) the primary purpose of the LinkedIn content is to attract new clients to retain the lawyer for pecuniary gain;

(c) the LinkedIn content relates to the legal services offered by the lawyer;

(d) the LinkedIn content is intended to be viewed by potential new clients; and

(e) the LinkedIn content does not fall within any recognized exception to the definition of attorney advertising.”

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The City Bar Opinion includes a detailed analysis of each factor – all of which must be met for a lawyer’s LinkedIn profile to be an advertisement – and is a must-read for New York lawyers who maintain LinkedIn and other social media profiles.

In its discussion of element (b), Formal Opinion 2015-7 concludes that although the “act of endorsing is done by someone other than the lawyer,” “LinkedIn Endorsements and Recommendations constitute communications made ‘by or on behalf of the lawyer.’” Later, however, the City Bar Opinion notes that only endorsements relating to a lawyer’s legal practice satisfy criteria (c), and thus endorsements for skills such as “writing” or “public speaking” may not constitute attorney advertising. The City Bar Opinion states “a Recommendation from a client or colleague that describes a positive experience working with the lawyer or touts her legal prowess would meet this criteria, because it relates to the lawyer’s legal service. But a Recommendation that describes the lawyer’s commitment to public service, social justice or volunteerism does not relate to the legal services offered by the lawyer to clients.”

The analysis of element (b) in Formal Opinion 2015-7 is particularly extensive. The City Bar Opinion advises that “the ‘primary purpose’ standard refers to the subjective intent of the lawyer who makes the communication, but that this intent may be inferred – at least in certain instances – from other factors, including the content of the communication and the audience for the communication.” The Opinion discusses the many possible reasons why lawyers may post on LinkedIn stating that “[i]t should not be presumed that an attorney who posts information about herself on LinkedIn necessarily does so for the primary purpose of attracting paying clients” and that for a lawyer’s LinkedIn profile to constitute an advertisement, “there should be clear evidence” that attracting clients is indeed the primary purpose of the post. The City Bar Opinion acknowledges that it “differ[s] sharply” from the NYCLA Opinion and notes that “[i]ncluding a list of ‘Skills’ or a description of one’s practice area, without more, is not an advertisement. Likewise displaying Endorsements and Recommendations can have several purposes, beyond the goal of attracting paying clients.”

The City Bar Opinion also contains a detailed analysis of the rules and regulations that apply to attorney advertising and guidance as to how lawyers can comply with the advertising rules if their profiles meet the five criteria the City Bar articulated as a test for attorney advertising.

The social media landscape forever is changing and the ethical guidance for lawyers in the context is continually adapting as well. Indeed, the guidance set forth by the City Bar for the use of LinkedIn should be considered applicable to all forms of social media, including a lawyer’s personal Facebook page and Twitter feed for example. Lawyers who use social media must continue to keep their knowledge of ethics guidance current and tread cautiously when posting on social media.

From The Insider Blog:  White Collar Defense & Securities Enforcement.