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TRANSCRIPT
Being Alert to Ethics Issues in Marketing & Business Development
Presented By:
Shelly Solomon, Esq. Trish Lilley Michelle Maier
April 6, 2017
Table of Contents
PowerPoint Presentation ……………………………………….……………1 New Jersey Notice to the Bar on Super Lawyers ………….…………..13 State Bar of CA Formal Opinion No. 2016-196 ……………….………...16 NYCLA Ethics Committee Formal Opinion 748 ………………....……..24 “An Ethical Compass for Social Media Interaction”…………………..30 “Four Things to Avoid Writing on Your Law Firm Website/Blog”.....32 “Lawyers Using Social Media Lack Framework…” …………………..35
© 2017 Fox Rothschild
Being Alert to Ethics Issues in Marketing and Business Development
Shelly A. Solomon, Associate General Counsel
Trish Lilley, Chief Marketing Officer
Michelle Maier, Director of Marketing Communications
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The Dos and Don’ts of Prospecting
Rule 7.3 Solicitation of Clients(a) A lawyer shall not by in-person, live telephone or real-time electronic contact solicit professional employment when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain, unless the person contacted:
(1) is a lawyer; or
(2) has a family, close personal, or prior professional relationship with the lawyer.
The Dos and Don’ts of Prospecting
Rule 7.3 Solicitation of Clients(b) A lawyer shall not solicit professional employment by written, recorded or electronic communication or by in-person, telephone or real-time electronic contact even when not otherwise prohibited by paragraph (a), if:
(1) the target of the solicitation has made known to the lawyer a desire not to be solicited by the lawyer; or
(2) the solicitation involves coercion, duress or harassment.
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The Dos and Don’ts of Prospecting
Rule 7.3 Solicitation of Clients(c) Every written, recorded or electronic communication from a lawyer soliciting professional employment from anyone known to be in need of legal services in a particular matter shall include the words "Advertising Material" on the outside envelope, if any, and at the beginning and ending of any recorded or electronic communication, unless the recipient of the communication is a person specified in paragraphs (a)(1) or (a)(2).
What Is Unsolicited Contact?
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“Opt-in” for Firm Communications
Marketing Language Guide
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Four Things To Avoid
1) Misleading Information
Four Things To Avoid
2) Describing Yourself as an Expert or Specialist
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Four Things To Avoid
3) Comparing Your Services to Those of Other Lawyers
Four Things To Avoid
4) Guaranteeing Case Outcomes
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Prohibited Terminology Examples
• Best
• Unique
• Specialized
• Elite
• Superb
• Unparalleled
• Pre-eminent
• Superior
• Unsurpassed
• Unequaled
• Expert
• Expertise
• Specialist
• Specialize
ABC Firm is a global specialist law firm with a deep bench of experts focused on sectors with the greatest complexities and highest regulatory demands. We deliver practical commercial insight and judgment to our clients’ most important matters. Nothing stands in the way of giving clients the best of the firm’s entrepreneurial energy and seamless collaboration in a way that is distinctively ABC.
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Rule 7.4: Communication of Fields of Practice and Specialization
(a) A lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law.
(b) A lawyer admitted to engage in patent practice before the United States Patent and Trademark Office may use the designation "Patent Attorney" or a substantially similar designation.
(c) A lawyer engaged in Admiralty practice may use the designation "Admiralty," "Proctor in Admiralty" or a substantially similar designation.
(d) A lawyer shall not state or imply that a lawyer is certified as a specialist in a particular field of law, unless:(1) the lawyer has been certified as a specialist by an organization that has been approved by an
appropriate state authority or that has been accredited by the American Bar Association; and
(2) the name of the certifying organization is clearly identified in the communication.
Pitches, Proposals and RFPs.Oh My!
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Ethical Minefield: Social Media
Best Practices: Social Media
Practice Mindful Posting• What will my post say about me?
• How could this post impact my employer?
• How will my clients react to this post?
• How could this post affect my future?
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State and Local Bar Association Guidelines on Social Media
What should you follow?
Engaging Followers Without Creating Attorney-Client Relationships
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California State Bar Ethics Opinion
• The State Bar of California’s Standing Committee on Professional Responsibility and Conduct issued Formal Opinion No. 2016-196 concerning self-promotion on blogs written by California lawyers, and subjecting certain types of attorney blog posts, or elements thereof, to the advertising regulations set forth in the California Rules of Professional Conduct.
‒ “A stand-alone blog by an attorney, even if discussing legal topics within or outside the authoring attorney’s area of practice, is not a communication subject to the requirements and restrictions of the Rules of Professional Conduct and the State Bar Act relating to lawyer advertising unless the blog directly or implicitly expresses the attorney’s availability for professional employment.”
• When ending a blog post, for example, don’t include an invitation such as:“Please feel free to reach out to me or my colleagues to discuss your own situation with regard to this issue.”
Questions?
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NOTICE TO THE BAR
ATTORNEY ADVERTISING OF AWARDS, HONORS, AND ACCOLADES THAT
COMPARE A LAWYER'S SERVICES To OTHER LA WYERS' SERVICESREMINDER FROM THE COMMITTEE ON ATTORNEY ADVERTISING
The Supreme Court Committee on Attorney Advertising has received numerous grievances regarding attorney advertising of awards, honors, and accolades that compare a lawyer's services to other lawyers' services. Examples of such awards, honors, and accolades are: "Super Lawyers," "Rising Stars," Best Lawyers," "Superior Attorney," "Leading Lawyer," "Top-Rated Counsel," numerical ratings, and the like. The Committee issues this Notice to the Bar to remind lawyers that they may refer to such awards, honors, and accolades only when the basis for the comparison can be verified and the organization has made adequate inquiry into the fitness of the individual lawyer. Further, whenever permissible references to comparative awards, honors, and accolades are made, Rule of Professional Conduct 7.1 requires that additional language be displayed to provide explanation and context.
As a preliminary matter, a lawyer who seeks to advertise the receipt of an award, honor, or accolade that compares the lawyer's services to other lawyers' services must first ascertain whether the organization conferring the award has made "inquiry into the attorney's fitness." Official Comment to Rule of Professional Conduct 7.1. "The rating or certifying methodology must have included inquiry into the lawyer's qualifications and considered those qualifications in selecting the lawyer for inclusion." In re Opinion 39, 197 N.J. 66, 76 (2008); see also Committee on Attorney Advertising Opinion 42 (December 2010). This inquiry into the lawyer's fitness must be more rigorous than a simple tally of the lawyer's years of practice and lack of disciplinary history. Pursuant to Rule of Professional Conduct 7.1 ( a)(3)(ii), the basis for the comparison must be substantiated, bona fide, and verifiable.
The Committee has reviewed numerous awards, honors, and accolades that do not include a bona fide inquiry into the fitness of the lawyer. Some ofthese awards are the result of popularity contests -the lawyer "wins" the award when enough people email, telephone, or text their vote. Other awards are issued for a price or as a "reward" for joining an orgap.ization. Still others are generated based in large part on the participation of the lawyer with the conferring organization's website. For example, a lawyer can enhance his or her "rating" with the organization by endorsing other lawyers, becoming endorsed in return, responding to questions from the public about legal matters on the organization's website, and the like. Factors such as the payment of money for the issuance of the award; membership in the organization that will issue the award; and a level of participation on the organization's Internet website render such awards suspect. Lawyers may not advertise receipt of such awards unless, as a threshold matter, the conferring organization made adequate and individualized inquiry into the professional fitness of the lawyer.
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When an award, honor, or accolade meets this preliminary test, the lawyer must include additional information when referring to it in attorney advertising, whether that advertising be a website, law firm letterhead, lawyer email signature block, or other form of communication. First, the lawyer must provide a description of the standard or methodology on which the award, honor, or accolade is based, either in the advertising itself or by reference to a "convenient, publicly available source." Official Comment to RPC 7 .1. Second, the lawyer must include the name of the comparing organization that issued the award (note that the name of the organization is often different from the name of the award or the name of the magazine in which the award results were published). RPC 7.1 ( a)(3 )(i). Third, the lawyer must include this disclaimer "in a readily discernible manner: 'No aspect of this advertisement has been approved by the Supreme Court of New Jersey."' RPC 7.l(a)(3)(iii). All of this additional, accompanying language must be presented in proximity to the reference to the award, honor, or accolade.
Further, when the name of an award, honor, or accolade contains a superlative, such as "super," "best," "superior," "leading," "top-rated," or the like, the advertising must state only that the lawyer was included in the list with that name, and not suggest that the lawyer has that attribute. Hence, a lawyer may state that he or she was included in the list called "Super Lawyers" or "The Best Lawyers in America," and must not describe the lawyer as being l! "Super Lawyer" or the "Best Lawyer."
Lastly, the Committee has reviewed numerous law firm advertising that includes badges or logos of comparative awards (such as the yellow "Super Lawyers" badge) but does not include the required additional information in a discernible manner in proximity to the reference to the award. Every reference to such an award, honor, or accoladeeven when it is in an abbreviated form such as the badge or logo- must include the required accompanying information: (1) a description of the standard or methodology; (2) the name of the comparing organization that issued the award; (3) the statement "No aspect of this advertisement has been approved by the Supreme Court of New Jersey." Only the description of the standard or methodology can be presented by reference (with the statement that the standard or methodology can be viewed at that website or hyperlinked page). The other required information must be stated on the face of the advertising, readily discernible and in proximity to the reference to the award. The accompanying information carmot be buried at the bottom of a page, or in tiny print, or placed outside the screen shot on a website.
For example, a reference to the Super Lawyers accolade should provide:
Jane Doe was selected to the 2016 Super Lawyers list. The Super Lawyers list is issued by Thomson Reuters. A description of the selection methodology can be found at www.superlawvers.com/about/selection process detail.html. No aspect of this advertisement has been approved by the Supreme Court of New Jersey.
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Lawyers who seek further assistance as to compliance with the rules governing attorney advertising may make inquiry of the Committee on Attorney Advertising. See Court Rules 1:19A-3 and 1:19A-8.
Is/ Jonathan M. Korn
Jonathan M. Korn Chair, Committee on Attorney Advertising
Dated: May 4, 2016
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THE STATE BAR OF CALIFORNIA STANDING COMMITTEE ON
PROFESSIONAL RESPONSIBILITY AND CONDUCT FORMAL OPINION NO. 2016-196
ISSUES: Under what circumstances is “blogging” by an attorney a “communication”1/ subject to the requirements and restrictions of the Rules of Professional Conduct and related provisions of the State Bar Act2/ regulating attorney advertising?
DIGEST: 1. Blogging by an attorney may be a communication subject to the requirements and restrictions of the Rules of Professional Conduct and the State Bar Act relating to lawyer advertising if the blog expresses the attorney’s availability for professional employment directly through words of invitation or offer to provide legal services, or implicitly through its description of the type and character of legal services offered by the attorney, detailed descriptions of case results, or both.
2. A blog that is an integrated part of an attorney’s or law firm’s professional website will be a communication subject to the rules and statutes regulating attorney advertising to the same extent as the website of which it is a part.
3. A stand-alone blog3/ by an attorney, even if discussing legal topics within or outside the authoring attorney’s area of practice, is not a communication subject to the requirements and restrictions of the Rules of Professional Conduct and the State Bar Act relating to lawyer advertising unless the blog directly or implicitly expresses the attorney’s availability for professional employment.
4. A stand-alone blog by an attorney on a non-legal topic is not a communication subject to the rules and statutes regulating attorney advertising, and will not become subject thereto simply because the blog contains a link to the attorney or law firm’s professional website. However, extensive and/or detailed professional identification information announcing the attorney’s availability for professional employment will itself be a communication subject to the rules and statutes.
AUTHORITIESINTERPRETED: Rule 1-400 of the Rules of Professional Conduct of the State Bar of California.4/
Business and Professions Code sections 6157–6159.2.
1/ California’s Rule of Professional Conduct regulating attorney advertising, rule 1-400, by its terms applies only to “communications” by attorneys, which are defined as “any message or offer made by or on behalf of a member [of the State Bar] concerning the availability for professional employment . . . directed to any former, present, or prospective client.” The counterpart provision of the State Bar Act, Business and Professions Code section 6157, regulates attorney advertisements, which are defined as “communications” soliciting employment under specified conditions. Under either scenario, a message must be a “communication” to be subject to regulation. 2/ California Business and Professions Code section 6000, et seq. 3/ As used in this opinion, a “stand-alone” blog is a blog that exists independently of any website an attorney maintains or uses for professional marketing purposes. 4/ Unless otherwise indicated, all references to rules in this opinion will be to the Rules of Professional Conduct of the State Bar of California.
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STATEMENT OF FACTS
Attorney A is a small firm practitioner in criminal defense law who writes a stand-alone blog entitled “Perry Mason? He’s Got Nothing on Me!” The most recent post, which is typical in content and tone to virtually all of his posts, begins, “I won another case last week. That makes 50 in a row, by my count. Once again, I was able to convince a jury that there was reasonable doubt that my client – who had tested positive for cocaine when pulled over by the local constabulary for erratic driving – was completely unaware of the two-kilo bag of the same substance in her trunk. They were absolutely mesmerized by my closing argument. Here’s to the American justice system!” The blog does not explain what A regards as a “win,” or what percentage of the claimed victories involved court trials. The blog does not expressly invite readers to contact Attorney A, but it does identify Attorney A as “one of California’s premier criminal defense lawyers,” and his name appears as a hyperlink to his law firm’s professional web page.
Attorney B is a member of a law firm focusing on tax law and litigation that maintains a firm website identifying the types of services the firm provides, the background and experience of the firm’s lawyers, testimonials from firm clients, and other similar information. One page of the website, indistinguishable from the other pages in layout and features, is designated as a “blog,” both on the page and in the related menus linking to it. The “blog” contains a series of articles written by Attorney B and the other lawyers of the firm on changes in tax law and other topics of potential interest to the firm’s clients. Each post concludes with the statement, “For more information, contact” the author of the particular post.
Attorney C is a solo practitioner in family law who writes a blog on family law issues. The blog consists primarily of short articles on topics of potential interest to other family law practitioners and divorcing couples, such as special considerations in high-asset divorces, recent legislative developments in child and spousal support laws, and an explanation of custody law when one former spouse moves to another state. Attorney C’s primary purpose in blogging is to demonstrate his knowledge of family law issues, and thereby to enhance his reputation in the field and increase his business. The blog includes a hyperlink to C’s professional web page, but the blog postings do not describe Attorney C’s practice or qualifications, and contain no overt statements of Attorney C’s availability for professional employment. However, several of the blog posts end with the statement that if the reader has “any questions about your divorce or custody case, you can contact me” at Attorney C’s professional office phone number.
Attorney D is a solo practitioner in trusts and estates law who maintains a blog expressing his views on a variety of topics relating to the state of the judiciary and the importance of judicial independence, in particular his concern with the impact of reduced funding for the courts on access to justice and his opposition to judicial recall efforts that Attorney D characterizes as politically motivated. Attorney D claims no expertise in the constitutional or other legal issues related to the concept of judicial independence. Although he describes specifically the negative impact of reduced court funding on the Probate Court in which he regularly practices, and bases his opinions on personal experience, Attorney D includes no express invitation or offer to provide legal services in any of his blog posts or any other content of this website. The site does include a hyperlink to D’s professional web page located at the bottom of each page.
Attorney E is an employment law attorney who maintains a blog about jazz artists, performances, and recordings. The blog is not part of the website Attorney E maintains to promote his practice, but his professional website contains a link to the blog. Similarly, the blog contains a link to Attorney E’s professional website, along with contact information and a brief biographical note explaining that Attorney E is an employment law attorney.
DISCUSSION
“Blogging” has become an increasingly frequent activity of attorneys. Although the various definitions of “blog”5/ consistently describe it as a website or web page on which a writer, or group of writers, records observations,
5/ Dictionary.com defines “blog” as “a website containing a writer’s or group of writers’ own experiences, observations, opinions, etc., and often having images and links to other websites”
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reflections, opinions, comments, and experiences that are personal in nature, the term now encompasses essentially any website or page consisting of brief articles or comments on any variety of subjects. Blogs written by attorneys run the gamut from those having nothing to do with the legal profession, to informational articles, to commentary on legal issues and the state of our system of justice, to self-promoting descriptions of the attorney’s legal practice and courtroom successes, to overt advertisements for the attorney or her law firm.
By its nature, blogging raises First Amendment free speech issues. Prohibited for most of the 20th Century, advertising by attorneys was found to be protected commercial speech by the U.S. Supreme Court in Bates v. State Bar of Arizona (1977) 433 U.S. 350 [97 S.Ct. 2691]. Bates provides that truthful attorney advertising cannot be absolutely prohibited, but may be subject to reasonable restrictions.
In contrast, informational and educational writing by lawyers for publication, such as newspaper and magazine articles and practice guides, historically have been considered core or political speech, fully protected under the First Amendment6/ and subject to restriction or limitation only under extraordinary circumstances, such as when public health and safety is at risk. This is true even though most articles on legal topics by attorneys likely are written, at least in part, to enhance the authoring attorney’s professional reputation and visibility and, for attorneys in private practice, to increase business. As has been made clear by both the U.S. Supreme Court (see Bolger v. Youngs Drug Products Corp. (1983) 463 U.S. 60, 66–68 [103 S.Ct. 2875]) and the California Supreme Court (see Kasky v. Nike, Inc. (2002) 27 Cal.4th 939, 956–962 [119 Cal.Rptr.2d 296]), the fact that a blog is economically motivated does not, in and of itself, mean that it is “commercial speech” subject to regulation by the State Bar as advertising; commercial motivation is only a factor to be considered.
Most “traditional” blogs expressing the blogger’s knowledge and opinions on various topics and issues, legal and non-legal, will be regarded as core or political speech. However, if a blog post advertises the attorney’s availability for employment, according to the standards established by the Rules of Professional Conduct and statutes adopted in light of the court cases applicable to attorney advertising, the blog may be held subject to those rules and statutes.7/
This opinion is not intended to chill or limit the protected speech of any lawyer, but rather to provide guidance to attorneys engaged in blogging activity as to the types of blogs or blog posts that may fall within the ambit of those regulations and statutes.8/
(http://dictionary.reference.com/browse/blog?s=t); Merriam-webster.com defines the term as “a Web site that contains online personal reflections, comments, and often hyperlinks provided by the writer” (http://www.merriam-webster.com/dictionary/blog); and the online Oxford English Dictionary defines “blog” as a “personal website or web page on which an individual records opinions, links to other sites, etc. on a regular basis” (http://www.oxforddictionaries.com/us/definition/american_english/blog?searchDictCode=all). Blogging by lawyers is sometimes referred to as “blawging.” 6/ This distinction has been recognized since at least 1928, when the Canons of Professional Ethics adopted by the American Bar Association – and followed in all states for most of the century – held that “[a] lawyer may with propriety write article for publications in which he gives information upon the law” (Canon 40), while at the same time providing that “[i]ndirect advertisements for professional employment . . . and all other like self-laudation, offend the traditions and lower the tone of our profession and are reprehensible.” (Canon 27). (See also Utah State Bar Ethics Advisory Opinion No. 98-15, N.J. Att’y Advertising Comm. Op. 23, 149 N.J.L.J. 1298 (1997); Tex. Ethics Op. 425, 1985 (Tex. Sup. Ct. Prof. Ethics Comm.); Ill. Ethics Adv. Op. 763, 1982 (Ill. St. Bar Ass’n).) 7/ See also Belli v. State Bar (1974) 10 Cal.3d 824, 831–833 [112 Cal.Rptr. 527], in which the California Supreme Court held that solicitations for educational activities (a lecture series) constituted fully protected speech, but further noted,“We do not mean to suggest, of course, that Belli and others should be permitted to use such solicitation as a subterfuge for soliciting legal business.” 8/ This opinion addresses only the question of whether different types of blogging constitute attorney advertising under the Rules of Professional Conduct and related provisions of the State Bar Act. It does not address other professional ethical requirements imposed on attorneys, which may come into play in their online postings. (See, for example, In re Joyce Nanine McCool, 2015-B-0284, Attorney Disciplinary Proceeding, Supreme Court of Louisiana [lawyer disbarred due to overzealous social media activism against judges].)
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Advertising for California attorneys is governed primarily by rule 1-400, which prohibits “communications” which are false or deceptive in content or presentation, or which tend to confuse, deceive, or mislead the public. (Rule 1-400(D)(1), (2), and (3).) Rule 1-400(D)(4) also prohibits “communications” which do not “indicate clearly, expressly, or by context, that it is a communication or solicitation, as the case may be.” Rule 1-400 also includes a list of standards adopted by the State Bar’s Board of Trustees (rule1-400(E))9/ that describe types of communications that are presumed to be deceptive or misleading, and are therefore presumptively prohibited under the rule. These communications include such things as guarantees, warranties, or predictions regarding the result of the representation (Standard (1)) and testimonials about or endorsements of a member without an express disclaimer such as “this testimonial or endorsement does not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter” (Standard (2)).10/
Rule 1-400, by its terms applies only to “communications” by attorneys.11/ Rule 1-400(A) defines a “communication” as “any message or offer made by or on behalf of a member [of the State Bar] concerning the availability for professional employment . . . directed to any former, present, or prospective client.” To qualify as a communication, the message or offer must: (1) be made by or on behalf of a California attorney; (2) concern the attorney’s availability for professional employment; and (3) be directed to a former, present, or prospective client.
All blogs maintained by an attorney, in the attorney’s professional capacity, meet the first and third parts of this test.12/ Blog posts written or specifically authorized by an attorney are messages made by or on behalf of a member of the State Bar. Posts on the Internet are directed to the general public, which necessarily includes all possible former, present, or prospective clients. (Cal. State Bar Formal Opn. Nos. 2001-155 and 2012-186.)
Thus, whether a blog post may be found to be a “communication” subject to regulation under rule 1-400 will depend on whether it meets the second part of the test: Is the post “concerning the availability for professional employment” of the member or her firm?
In California State Bar Formal Opinion No. 2012-186, this Committee analyzed whether five short hypothetical posts on a social media website would be considered “communications” under rule 1-400. The Committee concluded that posts which contained words of offer or invitation relating to representation (“Who wants to be next?”; “Check out my web site!”; or “Call for a free consultation”) met the criteria, while those which were informational in nature, offering free copies of an article the attorney had written, did not. We believe the same analysis applies with respect to blogs. Thus, a blog post which contains an offer to the reader to engage the attorney, or is a step towards securing potential employment, such as offering a free consultation, would be a
9/ See rule 1-400(E): “The Board of Trustees of the State Bar shall formulate and adopt standards as to communications which will be presumed to violate this rule 1-400. The standards shall only be used as presumptions affecting the burden of proof in disciplinary proceedings involving alleged violations of these rules.” 10/ The State Bar Act also includes Article 9.5 (encompassing §§ 6157–6159.2) governing legal advertising. Like rule 1-400, these sections prohibit any advertising that is false or misleading (§ 6157.1) or that contains any guarantee of outcome or promise of quick payment (§ 6157.2). Section 6158 provides that the “message as a whole may not be false, misleading, or deceptive, and the message as a whole must be factually substantiated.” Sections 6158.1 and 6158.2 set forth types of communications that are presumed either to be false, misleading, or deceptive (§ 6158.1) or to be in compliance with the provisions of this statutory article (§ 6158.2). 11/ Although rule 1-400 also regulates “solicitations” by attorneys, those provisions are not applicable to blog posts, even those which concern the availability of the writer for professional employment. A “solicitation” under the rule is defined as a “communication . . . (a) delivered in person or by telephone, or (b) directed by any means to a person known to the sender to be represented by counsel in a matter which is a subject of the communication.” Whether or not a blog post is a communication under rule 1-400, it cannot be a solicitation because it is not “delivered in person or by telephone,” nor is it “directed to a specific person known to be represented by counsel.” (See Cal. State Bar Formal Opn. Nos. 1995-143 and 2004-166.) 12/ As we discuss below in connection with Attorney E, an attorney’s blog addressing non-legal issues is unlikely to be deemed a “communication” for purposes of rule 1-400.
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“communication” within the meaning of rule 1-400 and subject to the rule’s requirements and conditions, while a post which provides or offers only information or informational materials would not.
Formal Opinion No. 2012-186 did not address the type of posts made in many blogs, which describe in detail the services offered by the authoring attorney or law firm, and contain detailed author contact information, but which do not include express words of offer or invitation to engage the attorney’s services. The Committee believes such posts can constitute “communications” subject to rule 1-400. This Committee has previously opined that, even without specific words of invitation or offer, a website that “includes a description of Attorney A’s law firm and its history and practice; the education, professional experience, and activities of the firm’s attorneys;” and other features relating to the practice of law implicitly indicates the firm’s availability for professional employment and, thus, is a “communication.” (Cal. State Bar Formal Opn. No. 2001-155.) The detailed listing of services, qualifications, background, and other attributes of the attorney or law firm, and their distribution to the public, carries with it the clear implication of availability for employment.
The Committee believes the same analysis applies to blog posts that detail an attorney or law firm’s courtroom victories or other professional successes. Such posts necessarily involve a description of the type and character of the legal services the attorney/law firm provides, as discussed above. The Committee continues to believe that this characterization does not apply to general expressions of excitement or exultation over a single result,13/ but advises that multiple such posts may be held to be communications because they implicitly concern the attorney’s availability for professional employment, particularly if they include more detailed information about the attorney’s practice or are related to posts that include such information.
While a recitation or listing of all of an attorney’s cases and outcomes, without commentary, may be informational, “[a] message as to the ultimate result of a specific case or cases presented out of context without adequately providing information as to the facts or law giving rise to the result” is presumed to be false, misleading, or deceptive. (Bus. & Prof. Code section 6158.1(a); see also, Standard (1) of rule 1-400 regarding “guarantees, warranties, or predictions regarding the result of the representation.”) Even a numerical quantification of “wins” or similar terms can be misleading, absent a description of what the attorney blogger considers a “win”; a courtroom victory is a far different thing than pleading to a lesser charge, though both arguably can be described under some circumstances as “wins.”
Although there are no California ethics opinions or cases directly on point, the Supreme Court of Virginia held in Hunter v. Virginia State Bar ex rel. Third District Committee (2013) 285 Va. 485 [744 S.E.2d 611] (cert. denied (2013) __ U.S. __ [133 S.Ct. 2871]), that an attorney’s blog which focused almost exclusively on the attorney’s successes in the field of criminal defense law constituted advertising within the meaning of Virginia’s attorney advertising rule. The Supreme Court of Virginia found that attorney Horace Hunter’s focus on his skills as an attorney and his firm’s seemingly unbroken record of successes “could lead the public to mistakenly believe that they are guaranteed to obtain the same positive results if they were to hire Hunter,” and therefore was subject to regulation. This is consistent with Comment [3] to ABA Model Rule of Professional Conduct, Rule 7.1,14/ which states:
An advertisement that truthfully reports a lawyer’s achievements on behalf of clients or former clients may be misleading if presented so as to lead a reasonable person to form an unjustified
13/ See California State Bar Formal Opinion No. 2012-186, where the Committee found that a posting of “Case finally over. Unanimous verdict! Celebrating tonight,” standing alone, was not a “communication.” The Committee added, “Attorney status postings that simply announce recent victories without an accompanying offer about the availability for professional employment generally will not qualify as a communication.” 14/ The ABA Model Rules are not binding in California but may be used for guidance by lawyers where there is no direct California authority and the ABA Model Rules do not conflict with California policy. (City & County of San Francisco v. Cobra Solutions, Inc. (2006) 38 Cal.4th 839, 852.) Thus, in the absence of related California authority, we may look to the Model Rules, and the ABA Formal Opinions interpreting them, as well as the ethics opinions of other jurisdictions or bar associations for guidance. (Rule 1-100(A) [ethics opinions and rules and standards promulgated by other jurisdictions and bar associations may also be considered]; State Compensation Ins. Fund v. WPS, Inc. (1999) 70 Cal.App.4th 644, 656 [82 Cal.Rptr.2d 799].)
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expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client’s case.
While California’s rules and statutes differ from Virginia’s and the Model Rules, they share many similarities in this area. Rule 1-400(D)(2) and (D)(3) prohibit communications which “[c]ontain any matter, or present or arrange any matter in a manner or format which is false, deceptive, or which tends to confuse, deceive, or mislead the public,” as well as communications which “omit to state any fact necessary to make the statements made, in the light of circumstances under which they are made, not misleading to the public.” As noted above, both Standard (1) of rule 1-400 and Business and Professions Code section 6158.1(a) provide that communications which contain guarantees, warranties, or predictions are presumed to be false, misleading, or deceptive.
Both the Virginia Supreme Court in Hunter and the Model Rules provide that the inclusion of an appropriate disclaimer or qualifying language may preclude a finding that a statement is likely to create unjustified expectations or otherwise mislead the public. The same is true in California. Both rule 1-400 and the State Bar Act provide that an appropriate disclaimer may, but will not necessarily, overcome the presumption that descriptions of case results are misleading. Standard (2) of rule 1-400(E) provides that only a testimonial or endorsement bearing a disclaimer such as “this testimonial or endorsement does not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter” can overcome the presumption that those testimonials and endorsements are false, misleading, or deceptive pursuant to the rule. Section 6158.3 provides that any electronic media advertisement which conveys a message portraying a result in a particular case or cases must either “adequately disclose the factual and legal circumstances that justify the result portrayed in the message” or “state that the result portrayed in the advertisement was dependent on the facts of that case, and that the results will differ if based on different facts.” The section warns, however, that “use of the disclosure alone may not rebut any presumption created in Section 6158.1.”
In light of these considerations, we review the individual fact scenarios described above.
Attorney A – “Perry Mason? He’s Got Nothing on Me!”
Attorney A’s blog is an extreme example of a blog post that does not include specific words of invitation to retain the authoring attorney’s services, but which, in the Committee’s view, is a “communication” subject to rule 1-400. The blog posts describe the attorney’s services as a criminal defense lawyer, and make specific representations concerning the quality of those services (“they were absolutely mesmerized by my closing argument”). The posts also implicitly express Attorney A’s availability for professional employment and invite readers to employ Attorney A’s services. The comments in the blog posts about the justice system are far more self-promotional than analytical, serving primarily to reinforce the message that the author is capable of taking advantage of the system.
Under the facts presented, Attorney A’s blog posts describing his courtroom successes would presumptively violate the following standards adopted by the State Bar’s Board of Trustees pursuant to rule 1-400(E): Standard (1) [a communication which contains guarantees, warranties, or predictions regarding the result of the representation] and, in the case of any posts describing the satisfaction of his clients, Standard (2) [a communication which contains testimonials about or endorsements of a member unless such communication also contains an express disclaimer]. They also presumptively would be deemed false, misleading, or deceptive under Business and Professions Code section 6158.1 as a “message as to the ultimate result of a specific case or cases presented out of context without adequately providing information as to the facts or law giving rise to the result.” 15/ This is particularly true in the instant case because the posts do not explain what Attorney A means when he says he has “won” 50 cases in a row, which could include a broad range of results.
15/ Attorney A’s blog also risks violating his duty of confidentiality owed to the client described in the blog, if that client is identifiable even without inclusion of his name. See Comment [4] to Model Rule 1.6, which states that the prohibition against revealing client confidential information “also applies to disclosures by a lawyer that do not in themselves reveal protected information but could reasonably lead to the discovery of such information by a third person.” (See also In re Peshek, M.R. 23794 (Ill. 2010).) As referenced in footnote 7 above, this opinion does not address these and other potential ethics issues raised by the various hypothetical blogs discussed herein.
7
The Committee further believes that the express disclosure required under rule 1-400(D)(4) and section 6158.3 that the post may constitute attorney advertising should be conspicuously displayed on the blog post itself.
Attorney B - Blog as Part of a Professional Website
Professional websites maintained by attorneys and law firms have been found to concern their availability for professional employment and, thus, are attorney advertising subject to regulation. In California State Bar Formal Opinion No. 2001-155, this Committee concluded that an attorney’s professional website is a communication within the meaning of rule 1-400(A), as well as advertising subject to regulation under Business and Professions Code section 6157. The Committee further expressed the belief that “this conclusion is not altered by the inclusion in the web site of information and material of general public interest.”16/
The Committee concludes that “information and material of general public interest” includes a blog or blog post that is on the firm website. As part of a larger communication (the professional website) which concerns the firm's availability for professional employment, the blog will be subject to the same requirements and restrictions as the website.
Consistent with Formal Opinion 2001-155’s finding that law firm websites are per se communications pursuant to rule 1-400, the committee believes that the website – and any included blog – meets the requirement of rule 1-400(D)(4) that it clearly indicate it is a communication by context, and therefore no additional disclosure of that fact is required.
Attorney C – Stand-Alone Blog in Attorney Practice Area
Attorney C’s blog consists of short articles directly related to C’s area of practice on such topics as “How to Make a Visitation Exchange Go Smoothly,” “Collaborative Divorce in California,” “How to Survive Divorce with Style and Some Cash Left,” and “California QDROs (Qualified Domestic Relations Orders).” None of the blog posts focuses on current or former cases of Attorney C’s, nor describes his own family law practice. All of the posts identify Attorney C as the author, with Attorney C’s name hyperlinking to his professional web page. Some of the posts conclude with the statement that if the reader has “any questions about your divorce or custody case, you can contact me” at Attorney C’s professional office phone number.
The Committee opines that, except as noted in the following paragraph, Attorney C’s stand-alone family law blog is not a “communication” subject to rule 1-400. Even though Attorney C’s primary purpose in blogging is to demonstrate his knowledge of family law issues to his colleagues and prospective clients in order to enhance his reputation in the field and increase his business, the blog posts are informational expressions of Attorney C’s knowledge and opinions. They are not offers or messages concerning Attorney C’s availability for professional employment; they do not invite readers to employ Attorney C’s services; and they do not specifically describe the services that Attorney C offers. For these reasons, the Committee believes they are not “communications” subject to the rule.
The Committee believes, however, that the concluding statement in several of the blog posts in which Attorney C asks his readers to call him if they have questions about their personal divorce or custody cases does constitute words of invitation evidencing Attorney C’s availability for professional employment. Unless the concluding statements are removed, the posts to which they are attached may be found to be “communications” subject to the provisions of rule 1-400, including that rule’s requirement in (D)(4) that the post “indicate clearly, expressly, or by context, that it is a communication.”
16/ This is consistent with the conclusion reached in American Bar Association Committee on Ethics and Prof. Responsibility, Formal Opinion No. 10-457. The ABA opinion concludes that the requirements of rules 7.1, 8.4(c), and 4.1(a) also apply to information of a general nature contained on the website, including information provided to assist the public in understanding the law and in identifying when and how to obtain legal services. Although the opinion does not specifically refer to a website-based blog, its application of the requirement to articles, information provided in a narrative form, and FAQ’s (frequently asked questions) makes the application to blogs clear.
8
If several blog posts, or parts thereof, are grouped together, and some of those blog posts are potentially subject to rule 1-400, it would be prudent for the attorney to include a conspicuous disclosure pursuant to rule 1-400(D) proximate to the blog posts explaining that some of the posts listed may constitute attorney advertising.
Attorney D – Stand-Alone Blog on Legal Topics Outside of Attorney Practice Area
Attorney D’s stand-alone blog includes posts concerning what he sees as the negative impact of reduced court funding on societal access to justice, including his own practice area of trusts and probate law, as well as the impact of politically-motivated recall petitions on judicial independence. Although Attorney D is a practicing lawyer and the blog includes a hyperlink to his professional web page, the Committee concludes that the facts presented indicate that the blog does not concern Attorney D’s availability for professional employment. Therefore, the blog would not be construed as a “communication” subject to rule 1-400 or an “advertisement” under Business and Professions Code section 6157(c).
Attorney E– Non-Legal Blog Linked to Professional Web Page
The fact that Attorney E’s blog by-line is a hyperlink to Attorney E’s professional website, contains contact information, and identifies Attorney E as an attorney will not change the character of the associated blog or render it attorney advertising. Neither a link from the by-line to the attorney author’s professional page nor the inclusion of contact information will itself serve to transform a blog on any topic, legal or non-legal, into advertising subject to rule 1-400 or Business and Professions Code sections 6157, et seq. An attorney may freely write a blog on any of countless legal and non-legal subjects, and may identify himself or herself as an attorney thereon, without concern of being subject to rule 1-400, unless the blog or blog post specifically invites the reader to retain the attorney’s services or otherwise indicates the attorney’s availability for professional employment pursuant to rule 1-400(A) or Business and Professions Code section 6157.
CONCLUSION
A blog by an attorney will not be considered a “communication” subject to rule 1-400 or an “advertisement” subject to Business and Professions Code sections 6157, et seq., unless the blog expresses the attorney’s availability for professional employment directly through words of invitation or offer to provide legal services, or implicitly, for example, through a detailed description of the attorney’s legal practice and successes in such a manner that the attorney’s availability for professional employment is evident.
A blog included on an attorney’s or law firm’s professional website is part of a “communication” subject to the rules regulating attorney advertising to the same extent as the website of which it is a part.
A stand‐alone blog by an attorney on law‐related issues or developments within his or her practice area is not a “communication” subject to the rules regulating attorney advertising unless it invites the reader to contact the attorney regarding the reader’s personal legal case, or otherwise expresses the attorney’s availability for professional employment.
A stand-alone blog on law-related issues maintained by an attorney that is not part of the attorney’s professional website is not a “communication” subject to attorney advertising regulations unless the blog indicates the attorney’s availability for professional employment.
A non-legal blog by an attorney is not a “communication” subject to the rules or statutes regulating attorney advertising, even if it includes a hyperlink to the attorney’s professional web page or contains biographical or contact information. However, the biographical or contact information itself may be subject to the rules and statutes.
This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of the State Bar of California. It is advisory only. It is not binding on the courts, the State Bar of California, its Board of Trustees, any persons or tribunals charged with regulatory responsibilities, or any member of the State Bar.
[Publisher’s Note: Internet resources cited in this opinion were last accessed by staff on February 4, 2016. Copy of these resources are on file with the State Bar’s Office of Professional Competence.]
New York County Lawyers Association Professional Ethics Committee
Formal Opinion 748
March 10, 2015
TOPIC: The ethical implications of attorney profiles on LinkedIn
DIGEST: Attorneys may maintain profiles on LinkedIn, containing information such as education, work history, areas of practice, skills, and recommendations written by other LinkedIn users. A LinkedIn profile that contains only one’s education and current and past employment does not constitute Attorney Advertising. If an attorney includes additional information in his or her profile, such as a description of areas of practice or certain skills or endorsements, the profile may be considered Attorney Advertising, and should contain the disclaimers set forth in Rule 7.1. Categorizing certain information under the heading “Skills” or “Endorsements” does not, however, constitute a claim to be a “Specialist” under Rule 7.4, and is accordingly not barred, provided that the information is truthful and accurate.
Attorneys must ensure that all information in their LinkedIn profiles is truthful and not misleading, including endorsements and recommendations written by other LinkedIn users. If an attorney believes an endorsement or recommendation is not accurate, the attorney should exclude it from his or her profile. New York lawyers should periodically monitor and review the content of their LinkedIn profiles for accuracy.
RULES OF PROFESSIONAL CONDUCT: 7.1 and 7.4
OPINION
LinkedIn, the business-oriented social networking service, has grown in popularity in recent years, and is now commonly used by lawyers. The site provides a platform for users to create a profile containing background information, such as work history and education, and links to other users they may know based on their experience or connections. Lawyers may use the site in several ways, including to communicate with acquaintances, to locate someone with a particular skill or background—such as a law school classmate who practices in a certain jurisdiction for assistance on a matter—or to keep up-to-date on colleagues’ professional activities and job changes.
The site also allows users and their connections to list certain skills, interests, and accomplishments, creating a profile similar to a resume or law firm biography. Users can list their own experience, education, skills, and interests, including descriptions of their practice areas and prior matters. Other users may also “endorse” a lawyer for certain skills—such as litigation or matrimonial law—as well as write a recommendation as to the user’s professional skills. 1
1 This opinion addresses the fields, headings, and protocols of LinkedIn as they exist on the date of this opinion. The committee cannot anticipate changes or additions to this or other social networking sites, and limits this analysis to the site as of the date of this opinion.
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2
This opinion addresses the ethical implications of LinkedIn profiles: specifically, whether a LinkedIn Profile is considered “Attorney Advertising,” when it is appropriate for an attorney to accept endorsements and recommendations, and what information attorneys should include (and exclude) from their LinkedIn profiles to ensure compliance with the New York Rules of Professional Conduct.2
***
LinkedIn allows a user to provide objective, biographical information such as one’s “Education” and “Experience,” as well as subjective information, such as “Skills,” “Endorsements,” and “Recommendations.” LinkedIn users can control the fields they choose to populate. Some users may only list education and work experience, while other users may include more extensive information, such as skills, endorsements, and recommendations. Furthermore, the information in one’s profile visible to others may vary depending on the whether the viewer located the profile through an external search engine such as Google, whether the viewer is logged in to LinkedIn on the computer being used, or whether the viewer is “connected” on LinkedIn to the person whose profile he or she is viewing.
In light of the varied information an attorney may provide on his or her profile, and which information is visible to online users, the use of LinkedIn raises concerns about what aspects of an attorney’s profile constitute “Attorney Advertising,” which is subject to specific ethical rules, and what aspects do not. The New York Rules of Professional Conduct define attorney advertising as “communications made in any form about the lawyer or the law firm’s services, the primary purpose of which is retention of the lawyer or law firm for pecuniary gain as a result of the communication. RPC 7.1. The rules further delineate what information an attorney may include in an advertisement—such as education, past experience, fee arrangements, testimonials or endorsements (NYRPC 7.1(b), (d))—and what information an attorney may not include in an advertisement—such as undisclosed paid endorsements or certain trade names. RPC 7.1(c). Online advertisements must be labeled “Attorney Advertising” “on the first page, or on the home page in the case of a website” (Id. at 7.1(f)) and any advertisement containing statements about the lawyer’s services, testimonials, or endorsements must include the disclaimer “[p]rior results do not guarantee a similar outcome.” Id. at 7.1(e)(3).
The comments to the rules make clear that “[n]ot all communications made by lawyers about the lawyer or the law firm’s services are advertising” as the advertising rules do not encompass communications with current clients or former clients germane to the client’s earlier representation. RPC 7.1, Cmt. [6]. Likewise, communications to “other lawyers . . . are excluded from the special rules governing lawyer advertising even if their purpose is the retention of the lawyer or law firm.” Id. Cmt. [7].
2 This opinion is limited to the committee’s analysis of the New York Rules of Professional Conduct. Attorneys should be aware that other jurisdictions may have different ethical rules, and should consult those rules where appropriate.
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3
Applying these rules to LinkedIn profiles, it is the opinion of this Committee that a LinkedIn profile that contains only biographical information, such as a lawyer’s education and work history, does not constitute an attorney advertisement. An attorney with certain experience such as a Supreme Court clerkship or government service may attract clients simply because the experience is impressive, or knowledge gained during that position may be useful for a particular matter. As the comments to the New York Rules of Professional Conduct make clear, however, not all communications, including communications that may have the ultimate purpose of attracting clients, constitute attorney advertising. Thus, the Committee concludes that a LinkedIn profile containing only one’s education and a list of one’s current and past employment falls within this exclusion and does not constitute attorney advertising.3
The additional information that LinkedIn allows users to provide beyond one’s education and work history, however, implicates more complicated ethical considerations. First, do LinkedIn fields such as “Skills” and “Endorsements” constitute a claim that the attorney is a specialist, which is ethically permissible only where the attorney has certain certifications set forth in RPC 7.4? Second, even if certain statements do not constitute a claim that the attorney is a specialist, do such statements nonetheless constitute attorney advertising, which may require the disclaimers set forth in RPC 7.1?
a. Specialization
New York Rule of Professional Conduct 7.4 prohibits an attorney from identifying herself as a “specialist” or “specializ[ing] in a particular field of law” unless the attorney has been certified by an appropriate organization or jurisdiction. RPC 7.4(a)–(c). The New York State Bar Association (NYSBA), interpreting the New York Rules of Professional Conduct, concluded in a 2013 opinion that “a lawyer or law firm listed on a social media site may . . . identify one or more areas of law practice [but] to list those areas under a heading of ‘Specialties’ would constitute a claim that the lawyer or law firm ‘is a specialist or specializes in a particular filed of law,’” and would likely run afoul of Rule 7.4, unless the attorney’s certifications meet the requirements of that Rule. See NYSBA Ethics Opinion 972 (June 26, 2013).
While NYSBA has addressed the ethical implications of the heading “Specialties,” the applicability of these guidelines to LinkedIn fields such as “Skills,” “Endorsements,” and “Recommendations” has not been previously addressed in New York. Further complicating this question is the fact that LinkedIn profile headings are not chosen by users. The LinkedIn website provides certain default fields, from which users can choose to add to their profiles. NYSBA advises users who are concerned about these headings to consider avoiding them entirely, by “includ[ing] information about the lawyer’s experience elsewhere, such as under another heading or in an untitled field that permits biographical information to be included.” Social Media Ethics Guidelines of the
3 Of course, as with all statements made by an attorney, either to a client, an adversary, or a judge, the biographical information must be truthful and not misleading. See RPC 7.1, Cmt. [6].
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4
Commercial Federal Litigation Section of the New York State Bar Association at 4 (Mar. 18, 2014) available at http://www.nysba.org/workarea/DownloadAsset.aspx?id=47547.
With respect to skills or practice areas on lawyers’ profiles under a heading, such as “Experience” or “Skills,” this Committee is of the opinion that such information does not constitute a claim to be a specialist under Rule 7.4. The rule contemplates advertising regarding an attorney’s practice areas, noting that an attorney may “publicly identify one or more areas of law in which the lawyer or law firm practices, or may state that the practice of the lawyer or law firm is limited to one or more areas of law, provided that the lawyer or law firm shall not state that the lawyer or law firm is a specialist or specializes in a particular field of law, except as provided in Rule 7.4(c).” RPC 7.4(a). This provision contemplates the distinction between claims that an attorney has certain experience or skills and an attorney’s claim to be a “specialist” under Rule 7.4. Categorizing one’s practice areas or experience under a heading such as “Skills” or “Experience” therefore, does not run afoul of RPC 7.4, provided that the word “specialist” is not used or endorsed by the attorney, directly or indirectly. Attorneys should periodically monitor their LinkedIn pages at reasonable intervals to ensure that others are not endorsing them as specialists.
b. Endorsements and Recommendations
Endorsements and recommendations written by other LinkedIn users raise additional ethical considerations. While these endorsements and recommendations originate from other users, they nonetheless appear on the attorney’s LinkedIn profile. The ethical treatment of endorsements and recommendations depends on who is considered to “own” the endorsement and recommendation: the author of the endorsement or recommendation or the person whose profile is enhanced by it.
Because LinkedIn gives users control over the entire content of their profiles, including “Endorsements” and “Recommendations” by other users (by allowing an attorney to accept or reject an endorsement or recommendation), we conclude that attorneys are responsible for periodically monitoring the content of their LinkedIn pages at reasonable intervals. To that end, endorsements and recommendations must be truthful, not misleading, and based on actual knowledge pursuant to Rule 7.1. For example, if a distant acquaintance endorses a matrimonial lawyer for international transactional law, and the attorney has no actual experience in that area, the attorney should remove the endorsement from his or her profile within a reasonable period of time, once the attorney becomes aware of the inaccurate posting. If a colleague or former client, however, endorses that attorney for matrimonial law, a field in which the attorney has actual experience, the endorsement would not be considered misleading. The Pennsylvania Bar Association, interpreting the Pennsylvania Rules of Professional Conduct, reached a similar conclusion in a 2014 opinion, emphasizing that an attorney must “monitor his or her social networking websites, [] verify the accuracy of any information posted, [and] remove or correct any inaccurate endorsements. . . . This obligation exists regardless of whether the information was posted by the attorney, by a client, or by a third party.”
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5
Pennsylvania Bar Association Formal Op. 2014-300, “Ethical Obligations for Attorneys Using Social Media,” at 12. While we do not believe that attorneys are ethically obligated to review, monitor and revise their LinkedIn sites on a daily or even a weekly basis, there is a duty to review social networking sites and confirm their accuracy periodically, at reasonable intervals.
c. LinkedIn Profiles as “Attorney Advertising” and Appropriate Disclaimers
Finally, if an attorney chooses to include information such as practice areas, skills, endorsements, or recommendations, the attorney must treat his or her LinkedIn profile as attorney advertising and include appropriate disclaimers pursuant to Rule 7.1. As discussed above, not all communications are advertising, and a LinkedIn profile containing nothing more than biographical information would not ordinarily be considered an advertisement. But 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.
Attorneys who wish to include this information should review Rule 7.1 to determine the appropriate language to include in their profiles. While the Committee declines to provide guidelines for all potential profile content, the Committee provides the following recommendations for attorneys’ consideration and directs attorneys to review Rule 7.1 before creating or significantly amending their LinkedIn profiles.
If an attorney’s LinkedIn profile includes a detailed description of practice areas and types of work done in prior employment, the user should include the words “Attorney Advertising” on the lawyer’s LinkedIn profile. See RPC 7.1(f). If an attorney also includes (1) statements that are reasonably likely to create an expectation about results the lawyer can achieve; (2) statements that compare the lawyer’s services with the services of other lawyers; (3) testimonials or endorsements of clients; or (4) statements describing or characterizing the quality of the lawyer’s or law firm’s services, the attorney should also include the disclaimer “Prior results do not guarantee a similar outcome.” See RPC 7.1(d) and (e). Because the rules contemplate “testimonials or endorsements,” attorneys who allow “Endorsements” from other users and “Recommendations” to appear on one’s profile fall within Rule 7.1(d), and therefore must include the disclaimer set forth in Rule 7.1(e). An attorney who claims to have certain skills must also include this disclaimer because a description of one’s skills—even where those skills are chosen from fields created by LinkedIn—constitutes a statement “characterizing the quality of the lawyer’s [] services” under Rule 7.1(d).
Conclusion
Attorneys may maintain profiles on LinkedIn, containing information such as education, work history, areas of practice, skills, and recommendations written by other LinkedIn users. A LinkedIn profile that contains only one’s education and current and past employment does not constitute Attorney Advertising. If an attorney includes additional information in his or her profile, such as a description of areas of practice or certain skills
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6
or endorsements, the profile may be considered Attorney Advertising and should contain the disclaimers set forth in Rule 7.1. Categorizing certain information under the heading “Skills” or “Endorsements” does not, however, constitute a claim to be a “Specialist” under Rule 7.4, and is accordingly not barred, provided that the information is truthful and accurate.
Attorneys must ensure that all information in their LinkedIn profiles, including endorsements and recommendations written by other LinkedIn users, is truthful and not misleading. If an attorney believes an endorsement or recommendation is not accurate, the attorney should exclude it from his or her profile. New York lawyers should periodically monitor and review the content of their LinkedIn profiles for accuracy.
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T H E O L D E S T L A W J O U R N A L I N T H E U N I T E D S T A T E S 1 8 4 3 - 2 0 1 4
PHILADELPHIA, TUESDAY, MAY 8, 2014
BY TRISH LILLEY AND MICHELLE MAIERSpecial to the Legal
From touting litigation and transac-tion successes and cheering on cli-ents to analyzing hot topics and
commenting on industry trends, attorneys are leveraging social media to expand their reach in unprecedented ways.
Whether blogs, LinkedIn, Twitter, Facebook or all of the above, social media proffers a host of promotional, business development and exposure opportunities to lawyers seeking to build their personal brands.
More and more attorneys are embracing these quickly evolving, easy-to-use tools to broaden their audiences, expand their rela-tionships and develop and grow their client bases. Going beyond the bio with social media allows them to demonstrate personal-ity and substantive fluency without the inten-sive time commitment required for in-person networking or traditional publishing.
But, as with any new communications tool, attorneys should be mindful when jumping on the social media bandwagon.
These promotional tools don’t come without risk. Knowing how the Rules of Professional Conduct—and ever-chang-ing ethical guidelines for social media—apply to your online activities is crucial.
“Social media can be a great way to get clients as well as to publicize yourself,” said Philadelphia Bar Association Assistant Executive Director Paul J. Kazaras.
“However, there are rules regarding adver-tising, and in my opinion, an attorney must comply with those rules when using all forms of social media,” added Kazaras, who served as staff attorney liaison to the professional
guidance and professional responsibility committees for more than two decades.
LONG WILL YOUR DIGITAL FOOTPRINT LIVE
Key to keep in mind is that your digital footprint has a lengthy, if not immortal, shelf life. Long after you’ve forgotten about a spe-cific blog post or LinkedIn update, it will be floating among the flotsam and jetsam on the digital sea, discoverable to anyone.
“Once you tweet something, it is there for the world to see, over and over and over,” Kazaras said.
With that in mind, be judicious in your postings and your opinions. You can
hardly predict who your clients may be in a few years, so ensure that you don’t leave yourself vulnerable to losing them before you’ve even met.
Likewise, remember that while you may separate your personal from your professional lives on social media with separate accounts, at the end of the day, you are still an attorney, and most state bars hold that members of the profes-sion must adhere to the highest moral and ethical standards regardless of the circumstances. So carefully consider any posting you may be contemplating and think about its long-term potential con-sequences. If you think something may be construed the wrong way, listen to your instincts and simply refrain from posting about it. Your digital footprint and future self will thank you.
WHO YOU ARE—OR AREN’TWith any social media site, you’ll need
to establish a profile. Believe it or not, you can easily run afoul of ethics guidelines at this initial step.
When drafting an online profile, follow the same guidelines you would for your firm website bio. Describe the type of work you do, how much you’ve done, where and for whom—as long as you’ve secured client permission to indicate that.
Avoid superlatives—best, most, unique, unparalleled, only and all the rest of those dodgy choices that would indicate you’re claiming supremacy over all other attorneys.
“Overstating or puffing can be a problem, because it’s misleading,” Kazaras warned.
Don’t label yourself as an expert or ref-erence your expertise or say that you spe-cialize in an area of law—unless you actu-
An Ethical Compass for Social Media Interaction
TRISH LILLEY is the chief marketing of-ficer at Fox Rothschild, which was named in 2012 by The National Law Journal as the law firm with the most blogs worldwide and whose 575-plus attorneys are active users of social media.
MICHELLE MAIER, director of marketing communications at the firm, has 18 years of experience in the legal industry and has man-aged communications functions—and associ-ated ethics compliance issues—at several Am Law 100 and 200 firms.
LILLEY MAIER
Social Media
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ally hold the requisite credentials and are certified as such (and we all know those who do are in the minority).
Several state and city bar associations across the country have confirmed that attorneys need to avoid any misleading characterizations in their social media bios that nonlawyers may not grasp. We suggest you check with your local bar associations to ensure your bio is in compliance.
BE ENGAGING WITHOUT GETTING ENGAGED
To fully harness the promotional power of social media, lawyers should engage regularly and routinely with their new and larger audiences. Initiate discussions in LinkedIn groups, pose a question in a blog post or invite comments via a tweet. Social media is most effective and pro-vides the greatest results when you keep it social and make it a two-way street. Substantive engagement with others allows you to not only showcase your flu-ency in a particular subject but also exhib-it your personality, which is what differen-tiates you from the competition.
However, the key to having successful online conversations—from an ethics standpoint—is to avoid offering legal advice to a specific individual or entity so that you do not inadvertently enter into a lawyer-client relationship. Lawyers should be sure to feature a disclaimer on their profiles or note one frequently in postings to indicate that their posts are not intend-ed as legal advice.
Should a current or prospective client try to discuss a legal matter with you via social media, refrain from having a public discussion. Instead, ask the individual to email or call you.
And as tempting as it may be to respond to naysayers or critics who post negative comments about you or your firm on social media, take the high road—and stay on the right side of the ethics path—by avoiding a response. Check with your firm’s general counsel or your bar’s ethics counsel to determine the appropriate course of action.
KEEPING CLIENTS HAPPY AND CONFIDENTIAL
Keeping clients—and keeping them happy—is a top goal of all attorneys. So
tread carefully in social media when it comes to clients.
As with any other type of interaction, discussing a client’s matters without the client’s permission is verboten. Even if you desperately want to explore the fasci-nating issues involved in a particular mat-ter in a hypothetical on your blog, you must put the client first.
“Remember that client confidential-ity needs to be maintained no matter what,” Kazaras said. “Just because you don’t use a client’s name doesn’t mean you are protecting confidentiality. Facts of a case can be well known, and if you are tweeting to either let your friends know what you are doing, or using some other social media to tout your successes, remember to guard the information you have about a client.”
“All of it is confidential,” he added. “You must always keep that in mind.”
Client concerns go beyond your own personal book of business. If you work for a firm of any size—but particularly at a large firm—you should run a check on any companies or individuals you plan to mention in a blog or social media post to ensure they aren’t clients or in some way involved in or connected to matters being handled by another attorney at your firm. After all, how would you feel if a colleague at your firm wrote something that men-tioned one of your clients?
Likewise, ensure that any positions you intend to take and share in a blog or social media posting on a hot-topic polit-ical or industry issue don’t conflict with your clients’—or your firm’s clients’—agendas. Think comprehensively about any subjective assessments or opinions you put out on social media before a cli-ent sees that you’ve condemned an indus-try practice it has long supported.
And if you are opining on an issue and mentioning a particular organization’s involvement in that issue, be sure that your firm colleagues aren’t actively involved in that organization. It would be quite the faux pas to, for example, make a negative comment about an organization in which a member of your firm leadership is actively involved. So do your due diligence and do it well. As we noted previously, your digital foot-print is pretty much immortal and will follow you around for a long, long, long
time. Be sure to always put your best digital foot forward.
FEEL THE LOVE—CAUTIOUSLYWe mentioned avoiding a public war of
words related to any negative reviews or feedback about you or your firm. The opposite—positive reviews, endorse-ments, praise—can be wonderful to fea-ture as part of your digital identity. What better way to persuade a potential client of your value and legal prowess than by sharing a shining review of your help from someone who has used your services?
Generally, endorsements are permitted to be featured on sites such as LinkedIn. However, attorneys should monitor the types of endorsements they receive to ensure the comments are “truthful, do not convey unreasonable or unquantifiable expectations and are not misleading,” according to Philadelphia Bar Association Professional Guidance Committee Opinion 2012-8.
CONTENT IS KING—OR KILLERThe best bloggers, tweeters and social
media activists are proactive, current on the latest developments and first to mar-ket with news links, photos, video and other relevant content that will get their musings noticed. Yet, surprisingly, many attorneys’ recollections of their media law classes fade when they delve into the social sphere.
Keep it legal and professional. Properly cite and clearly attribute any quotes, data or information secured from third-party sites or sources. Make sure any photos you add to a posting give credit to the proper and original source.
Social media is a powerful communi-cations tool, and when used wisely, pro-fessionally and ethically, it can greatly benefit you and your practice and help you exponentially expand your audience and grow your personal brand in a way that traditional networking, often con-strained by geographical boundaries, simply cannot. •
Reprinted with permission from the May 6, 2014 edition of THE LEGAL INTELLIGENCER © 2014 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 347-227-3382, [email protected] or visit www.almreprints.com. # 201-05-14-04
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Four Things To Avoid Writing on Your Law Firm Website or Blog by Sarah Andropoulos
https://onward.justia.com/2015/07/10/four-things-to-avoid-writing-on-your-law-firm-website-or-blog/
When it comes to marketing your law firm’s services on the Internet, you always want to
put your best foot forward. Your objective is to communicate information about your
practice that will convince prospective clients to contact (and ideally hire) you, and in this
context it may seem natural to explain why your firm is preferable to others. While at first
glance this approach to promoting your business may seem logical, attorneys must
proceed with caution here.
It is common knowledge in the legal industry that bar associations across the country
have specific rules in place to regulate what attorneys can and cannot say in their legal
advertising materials. What may not be as apparent is that these standards can and do
regulate information that appears on law firm websites and blogs, in addition to the more
traditional marketing tools. Each bar association has its own guidelines, and it is critical
to regularly check your state’s current rules of professional responsibility to ensure that
you are in compliance. However, the good news is that in most jurisdictions, avoiding a
few key pitfalls can help to prevent you from running afoul of your ethical obligations
when marketing your legal services online.
1. Misleading Information
A basic tenet of attorney advertising in any context, reflected in the American Bar
Association’s (ABA) Model Rule of Professional Conduct (“Model Rules”) 7.1 (note that
several states have adopted these rules, or variations thereof, in full or in part in crafting
their legal ethics standards), is that you cannot include any misleading information in
your advertising materials. This not only means that you cannot post false statements
about your practice on your website, but also that you cannot omit facts that would
prevent certain information from becoming misleading. Another way to think about this
rule is that your marketing materials can be misleading if they would cause a reasonable
person to reach conclusions about your services that are factually unsubstantiated. As
described further below, this can have implications for whether and how you incorporate
client testimonials or case results on your website, and also how you describe your
services in relation to other firms.
In sum, it is essential to be truthful in any statement you make about your practice on
your firm’s website or blog. Avoid any statements that could be construed as
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exaggerations, and make sure that any claims regarding your legal services are based in
fact.
2. Describing Yourself as an Expert or Specialist Without Certification
Another key legal ethics provision in most states involves the extent to which you can
claim to be an “expert” or “specialist” in your field. These statements, addressed
in Model Rule 7.4, are certainly permissible in many jurisdictions in which bar
associations offer or recognize formal certification in particular practice areas. However,
if you have not gone through an official certification process, which typically involves
steps such as subject area testing and peer evaluation, you run the risk of being
sanctioned by your state bar. Further, even if you have been certified as a specialist,
your bar association has likely designated the particular wording and/or images that you
are allowed to use in marketing this information.
In short, be careful that you only refer to yourself as a specialist or expert on your
website if you have been certified as such in accordance with state bar rules that are in
effect on this topic in most states, and that even if you have been, you use only state bar
approved language on your site in doing so.
3. Comparing Your Services to Those of Other Lawyers
Another general rule that goes hand in hand with the two standards described above is
to stay away from any statement that explicitly or implicitly conveys the notion that your
services are superior to those of other firms. As reflected in comment 3 to Model Rule
7.1, the logic here is that any unsubstantiated claim that could lead a reasonable person
to believe that your fees or services are better than someone else’s can be deemed
misleading. Depending on your state, this outcome can potentially be mitigated through
the inclusion of specific disclaimer language on your website. However, to stay on the
safe side, in most jurisdictions it is likely best to avoid referring to yourself or your
practice as being the “best” or “better” than others. And again, it is a good idea to refrain
from calling yourself an “expert” in your field unless, as discussed in relation to Model
Rule 7.4 above, your state bar association has formally conferred that designation upon
you.
4. Guaranteeing Case Outcomes
Similarly, and in keeping with the prohibition on misleading statements discussed above,
you should avoid using language on your website or blog that could be construed as
guaranteeing specific case outcomes for clients who are considering hiring you. It can be
easy to run into trouble in this area if you include information regarding past case results
or client testimonials on your site. As explained in comment 3 to Model Rule 7.1, this
kind of information, even if truthful, can be “misleading” if presented in a way that could
lead a reasonable person to expect the same results in a similar matter without
reference to the particular facts and circumstances of a given case. However, this is
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another area where a number of states recognize that certain disclaimer language can
be a valid means of precluding a finding that your statements in this context are
misleading.
Be sure that you are familiar with your state’s rules regarding whether and how you are
allowed to describe past case results or client testimonials on your website, as well as
any disclaimer language that you may be able to use to protect yourself against possible
professional discipline.
5. Additional Considerations
Finally, in addition to the standards described above, keep in mind that several states
require other specific disclaimers and language to be included in online and other
advertising materials. For example, lawyers in states such as Arizona and Colorado who
advertise that client fees are contingent upon the recovery of a financial award must
disclose that their clients may still be liable for costs. Some states, like Kentucky, require
wording such as “This is an Advertisement” to appear on all advertising materials.
6. Final Takeaways
Again, and as reflected by the rules referenced in the preceding paragraph, it is critical to
stay up to date on the professional responsibility rules in the state(s) you practice in, and
to ensure that all of your advertising materials conform to these standards. Though this
can seem like a daunting task, a good place to start for attorneys in most jurisdictions is
to keep in mind the 4 rules of thumb described above. Make sure that all the legal
marketing information you feature on your website or blog is grounded in fact, does not
contain exaggerations, and includes all appropriate disclaimers. Ensuring compliance
with your professional responsibilities can help you present your firm in a positive light,
convey accurate information regarding the scope of your services, and ultimately grow
your business.
Disclaimer: The information in this blog post (“post”) is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. No information contained in this post should be construed as legal advice from Justia Inc. or the individual author, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting on the basis of any information included in, or accessible through, this Post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country or other appropriate licensing jurisdiction.
Sarah Andropoulos is an attorney and member of Justia's content services team. She received her B.A. and J.D. from the University of California, Berkeley, where she served as the Managing Editor of the Berkeley Journal of Employment and Labor Law. Her legal practice experience includes litigating matters related to employment, financial services, and professional ethics.
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Lawyers Using Social Media Lack Framework for What's Allowed
Companies and firms are dealing with lawyers' social media use on a case-by-case basis,
leading to uncertainty.
David Ruiz, Corporate Counsel
March 29, 2017
In late January, a Google lawyer posted to her personal Twitter account a photo of herself and
several colleagues outside the office of U.S. Senator Dianne Feinstein, D-California, asking the
senator to vote against Jeff Sessions for U.S. Attorney General. The Google employees arrived in
person, the attorney wrote on her Twitter, because Feinstein's office phones were down, and the
team was "not taking any chances."
Shortly after, the tweet—which had a clear political slant—was gone. The Google lawyer, Priya
Sanger, works on the products and payments team, according to her LinkedIn account. She did
not return calls seeking confirmation and comment.
Ever since employees began sharing too much information on Twitter and Facebook, employers
have found reasons to fire them. In less serious cases, lawyers have at least raised eyebrows at
questionable social media conduct of their colleagues.
Companies and firms are dealing with lawyers' social media use on a case-by-case basis, leading
to uncertainty, in-house and outside counsel say.
In the case of the Google lawyer's Twitter, in-house counsel, law professors and private practice
attorneys said the Google in-house attorney did nothing wrong. Her post wasn't illegal, they said,
because it broke no rules of client confidentiality, and Sanger's tweet most likely overlapped with
Google's stance on similar issues: Sessions is a longtime opponent to comprehensive
immigration reform and in late January, Google signed onto an amicus brief challenging the first
draft of an immigration ban. Google co-founder Sergey Brin also protested the immigration ban
at the San Francisco International Airport.
According to Sanger's LinkedIn profile and her state bar records, she is still employed with
Google. Google did not immediately return a request seeking comment.
But lawyers are facing increased public and ethical scrutiny when their opinions are expressed
publicly online or in social media. And in today's reactionary world, lawyers said, even if
something isn't strictly illegal, it could still look bad.
"If I'm a corporate lawyer and I publish an op-ed about how I love immigration, but I don't say,
'By the way, I'm the general counsel of Google, and Google hires a lot of immigrants' would that
violate any rule of ethics for lawyers? I can't think of one," said Rory Little, professor of law at
UC Hastings College of Law, posing a hypothetical situation. "Would some people think it might
be improper? Yes, I think so."
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Ryan Garcia, managing legal director in charge of social media, gaming and consumer contract
management at Dell Technologies, said he believes the public's understanding of social media
use has matured in recent years. He said people don't typically misinterpret an individual's
personal opinions for that of their employer.
Garcia used the example of Justine Sacco, a former head of public relations for media
conglomerate IAC who, in 2013, on a flight to Cape Town, South Africa, wrote on Twitter that
she hoped she didn't get AIDS, according to a February 2015 report in The New York Times.
"Just kidding," Sacco wrote, "I'm white!"
"Nobody was saying 'I can't believe that the company she works for are racists,'" Garcia said.
"Instead, they were saying 'She's so racist, I can't believe you as a company would employ her.'"
Sacco was fired by IAC by the time she landed. According to the Times report, Sacco spent a
month living in Ethiopia, doing volunteer work for a nongovernmental organization that focused
on reducing maternal mortality rates, and she later took a communications job at Hot or Not, the
early website that allowed visitors to judge people's physical appearance. She now reportedly
works for an online fantasy sports platform. Sacco could not be reached for comment, and her
reported employer did not return a message seeking confirmation of Sacco's employment.
So, even if a lawyer posts an unpopular public opinion, Garcia said, there would likely be little
confusion that the lawyer's employer holds that same opinion. Garcia admitted a caveat,
however. If an employee's work is directly related to the personal opinions they post, a company
might want to implement social media policies limiting speech that could create the impression
of bias in a person's work, he said.
John Browning, partner at Dallas-based multiservice firm Passman & Jones, adjunct professor of
law at several universities and author of several books on social media use, said for example, the
public might believe that an executive or lawyer at a company was representing the views of his
company in his posts if he was in a position to craft policy or steer the company on important
positions.
"It is an entirely likely scenario that, in today's environment, with someone expressing what they
feel is their opinion, if they're in a senior leadership role in the company and they help shape and
drive policy, the public may consider how [the person] sees things, [that] is how the company
sees things," Browning said.
Browning said one jurisdiction in the United States is addressing the professional ethics of
posting on social media as an attorney.
In November 2016, the Washington, D.C., bar published Ethics Opinion 370, warning social
media-active lawyers to take caution when posting opinions opposing those of a client. Those
instances could create "positional conflicts," the opinion said. Browning explained it with a
hypothetical example:
"For example, if I represent the National Rifle Association and I send out a tweet after a mass
shooting that deplored the proliferation of firearms, I could be seen as having taken a position
contrary to my client," Browning said, "and I would be in positional conflict."
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Despite the lack of a formal rule or ethics opinion, lawyers already have gotten in trouble for
similarly expressing political opinions publicly in the past, Browning said.
Even firms themselves can get in trouble. In June 2016, the Twitter account for U.K.-based firm
Baker Small tweeted out self-congratulations for successfully defending multiple local
authorities against claims that services were not being provided to special needs children. Several
clients cancelled their contracts with the firm, The Guardian reported.
"When you beat up on a kid in a wheelchair, you have to be careful about how you celebrate,"
Browning said.
Michal Rosenn, general counsel at New York-based Kickstarter, has spoken openly about net
neutrality, patent reform and, most recently, President Donald Trump's attempted immigration
bans.
Rosenn said Kickstarter relies on its company charter to steer its public policy discussions. The
charter includes a commitment to arts and fighting inequality, supporting an equitable world and
helping creative projects come to life. Comparing those values to the idea of "objectivity" in
journalism, Rosenn said all Kickstarter decisions are guided by the charter.
Rosenn said, for example, the company would interfere with employee social media posts at the
threat of potential harassment or harm to employees, or to those outside the company, in case the
posts are directed to the general public. A company spokesperson said Kickstarter “expects its
employees to be responsible and respectful, and to remember that they are representing the
company online."
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