Unknowingly, many Quebec lawyers may be in breach of ethical obligations regarding Social Media use.
Quebec’s new Code of Professional Conduct of Lawyers (the “Code”), available online at http://legisquebec.gouv.qc.ca/en/showdoc/cr/B-1,%20r.%203.1, came into force on March 26, 2015 and replaced a previous iteration of the law. Parts of the Code were adapted to the needs of society in an increasingly technological age; however, Article 145, concerning lawyers’ advertising, remained untouched. Article 145 states that: “In his advertising, a lawyer may not use or allow to be used an endorsement or statement of gratitude concerning him.” Its strict application implies that any endorsement, including any posted online, may be in violation of the Code.
Article 145 may evoke notions of the stereotypically bombastic and outrageous commercials that advertise law practices on American television. Article 145 clearly prohibits such advertisements, which are less about providing meaningful legal information and more about pandering spectacle. However, the language of the article also leads technologically-minded advocates to wonder whether their more conservative social media practices are acceptable.
Lawyers have increasingly taken to social media to advertise their services. A significant percentage of Quebec lawyers now make use of professional networking websites such as LinkedIn. On LinkedIn, there is a “Recommendations” section where one can endorse a LinkedIn user with whom one is connected, or publish a statement of gratitude about that person. One does not need to be connected with someone, however, to view the endorsements and statements of gratitude that have been published on their profile. Allowing these endorsements to be posted and displayed on social media is in breach of Article 145 of the Code.
In the United States, several authors have noted that LinkedIn profiles do constitute an advertising platform. Of note, The New York County Lawyers Association Professional Ethics Committee published a formal opinion in March 2015 stating that:
“…[I]f an attorney chooses to include information such as…endorsements, or recommendations, the attorney must treat his or her LinkedIn profile as attorney advertising and include appropriate disclaimers… [A] LinkedIn profile that includes subjective statements regarding an attorney’s skills, areas of practice, endorsements, or testimonials from clients or colleagues is likely to be considered advertising.”
No Canadian jurisdiction, other than Quebec, prohibits the use of endorsements or statements of gratitude in lawyers’ advertising. The codes of professional conduct of Nova Scotia, New Brunswick and Prince Edward Island make no reference to any specific limitation on the use of endorsements and testimonials in lawyers’ advertising (though general rules concerning advertising, marketing and seeking business still apply). The Law Society of British Columbia permits lawyers to use endorsements in their advertising as long as they are “true and verifiable”. All other Canadian Provinces have based their ethical codes on the Federation of Law Societies Model Code of Professional Conduct which warns against including testimonials or endorsements “that contain emotional appeals,” stating that doing so “may” constitute a violation of lawyers’ ethical obligations. Although certain limitations have been prescribed in the rest of Canada, Quebec remains the only province that outright prohibits the use of endorsements and testimonials.
The breach of article 145 by Quebec lawyers is as widespread as it is overlooked. Many of Quebec’s legal professionals are choosing to include endorsements on their LinkedIn profiles. However, to our knowledge, no lawyer has yet been reprimanded by the Syndic du Barreau (the supervisory body which monitors professional practice and ethical compliance) in connection with their social media profile breaching Article 145. Nonetheless, when the office of the Syndic du Barreau, was contacted for their position on the matter, a representative asserted that the text of the Code is clear and that in no circumstance are public endorsements or statements of gratitude allowed.
This issue affects a significant percentage of lawyers and has broader implications about the practice of law in the age of social media. Article 145 will surely be examined in more detail as social media advertising becomes increasingly relevant, and lawyers’ use of LinkedIn will likely attract serious debate. Until the Barreau du Quebec reconsiders the inclusion of Article 145 in the Code, or a court pronounces on the article’s applicability, it would be wise to exercise prudence when using professional networking social media.