The document provides a practitioner's guide to ethical concerns regarding the use of social networking sites like LinkedIn. It discusses how LinkedIn profiles should be treated like advertisements under ethics rules. While simply having a profile is allowed, attorneys cannot solicit recommendations or endorsements. Attorneys should also avoid providing legal advice in social media groups to prevent forming attorney-client relationships or conflicting interests. Judges can use sites like LinkedIn but must avoid improper appearances or ex parte communications regarding pending cases. With care, social media can be used properly under ethics rules.

1. Are You Ethically LinkedIn? A Practitioner’s Guide to Ethical Concerns
Presented by Social Networking Websites.
Sophia L. Lauricella
Houston, Texas
Ph: (517) 414-8629
Sophia.Lauricella@gmail.com
Biography
Sophia L. Lauricella practices in the areas of commercial litigation, product
liability and insurance defense throughout Texas and Louisiana’s State and
Federal courts. Ms. Lauricella’s practice caters primarily to Fortune 100 clients in
unique matters including those involved in the In re Chinese Drywall and In re
Deepwater Horizon litigation. Ms. Lauricella also has significant experience
managing her own docket representing major oil and gas companies in toxic tort,
product liability, offshore oil and gas regulatory and employment matters.
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2. Are You Ethically LinkedIn? A Practitioner’s Guide to Ethical Concerns
Presented by Social Networking Websites.
By: Sophia L. Lauricella
As today’s world becomes more digitized, electronic social networks offer
faster more effective means of developing business relationships. Among
professionals, the most common is undoubtedly LinkedIn. While LinkedIn is an
ever evolving platform that can literally transform overnight, the rules of ethics
governing attorneys are not so flexible.
Advisory ethics opinions have established that attorneys using social
networks, which include LinkedIn, Facebook, Twitter and MySpace, are bound by
the rules of Professional Conduct. The purpose of today’s presentation is to guide
the practitioner through the most common ethical concerns social networking
websites present using LinkedIn as an example to which the A.B.A. Model Rules
of Professional Conduct apply.
I. Is a LinkedIn Profile an Advertisement?
As of this writing there are no reported opinions regarding whether
LinkedIn, Facebook or Twitter profile pages are considered advertisements or
simple communications about a lawyer’s services, most scholars, however,
believe that these pages will be considered advertisements by state regulators.
David L. Schwan, Social-Media Advertising Tips for Young Lawyers (Feb. 26,
2013) citing Dennis Kennedy and Allison C. Shields, LinkedIn in One Hour
for Lawyers 88 (2012). Texas, for example, declared that LinkedIn profiles
constitute advertisements in 2010. Therefore, the prudent path is to treat your
LinkedIn profile page like an advertisement and follow the Rules of
Professional Responsibility governing same.
According to A.B.A. Rule 7.2 (a), a lawyer may advertise services through
written, recorded or electronic communication, including public media.” In
an effort to clarify how social networking websites, considered a form of
public media, factored in to the equation, the A.B.A. created the Ethics 20/20
commission to address and evaluate this among other issues. Six issues were
addressed including those pertaining to advertising under Rules 7.2 and 7.3.
The result was the August 2012 approval of a number of proposed
adjustments to the advertising rules discussed more fully in the following
sections.
II. Is the LinkedIn Profile a Solicitation?
The primary reason so many attorneys have shied away from the use of
LinkedIn and other social networking websites is out of fear of violating State
and/or A.B.A. Model Rules prohibiting solicitation. The Ethics 20/20
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3. commission resolved this concern in August 2012 by clarifying what is and is
not a solicitation.
Solicitation of a client is now defined as follows. “A solicitation is a
targeted communication initiated by the lawyer that is directed to a specific
person and that offers to provide legal services.” Rule 7.3, cmt. 1. Comment 1
goes on to say, “a lawyer’s communication typically does not constitute a
solicitation if it is directed to the general public, such as through a billboard,
an Internet banner advertisement, a website or a television commercial, or if it
is in response to a request for information or is automatically generated in
response to Internet searches.” Rule 7.3, Cmt. 1.
Basically, so long as your LinkedIn profile is directed toward the general
public, merely having a profile page will not constitute a solicitation.
Interactions on LinkedIn as well as other social networking sites may violate
solicitation and other State rules.
III. How are Recommendations Viewed?
As established above, it is best to err on the side of caution and treat your
LinkedIn profile as an advertisement. Included on LinkedIn are a number of
interactive functions. Immediately below the standard profile is a section for
recommendations. A colleague can choose to recommend a professional on
LinkedIn via their own volition or in response to a request sent by a
professional to them.
When one connection recommends another a message is sent to the
recipient. A recipient is then given the option of whether to post the
recommendation to their LinkedIn profile or decline the recommendation.
Next, LinkedIn will prompt the recipient to reciprocate with a
recommendation to the recommender. This is where the ethics rules get
tricky.
A.B.A. Rule 7.2 (b), subject to a few exceptions, states, "A lawyer shall
not give anything of value to a person for recommending the lawyer's services
. . .". Based on this sentence alone, it is best to avoid reciprocal
recommendations. However, simply recommending a colleague on your own
volition does not pose a problem, so long as the recommendation is truthful.
Comment 5 of Rule 7.2 was added to provide clarification of the scope of
a recommendation. Comment 5 states that “a communication contains a
recommendation if it endorses or vouches for a lawyer’s credentials, abilities,
competence, character, or other professional qualities.”
Next, LinkedIn users will be prompted to request recommendations from
their connections when completing their profiles and at various times when
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4. signing into their profile. This is another part of LinkedIn's recommendation
process which is questionable for attorneys. The A.B.A. model rules do not
directly address whether an attorney can solicit recommendations on
LinkedIn. However, comment 5 makes a number of references to payment for
marketing efforts. Therefore, the model rules imply that soliciting connections
for recommendations is prohibited. Further, a number of state jurisdictions
out right prohibit recommendations.
IV. How about Endorsements?
Endorsements are the +1 feature of LinkedIn. The function works two
ways. First, LinkedIn will attempt to determine what your "skills" are based on
your profile summary and list them. Second, your connections will be prompted
to "endorse" the skills you already have listed and/or skills you don't. The typical
prompt is, "Does Sophia L. Lauricella know about family law?" If the attorney is
competent in the practice area in which they've been endorsed there is no concern.
However, ethics concerns arise when connections begin endorsing an attorney for
skills the attorney does not possess.
A.B.A. Model Rule 1.1 requires a lawyer to provide competent
representation to a client. Competent representation requires the legal knowledge,
skill, thoroughness and preparation reasonably necessary for the representation.
When this rule is viewed in light of A.B.A. rule 7.1 which states," A lawyer shall
not make a false or misleading communication about the lawyer or the lawyer's
services," it becomes apparent that allowing an inaccurate endorsement to appear
on an attorney’s page will likely be viewed as a violation of Rules 1.1 and 7.1.
Therefore, an attorney should not accept an endorsement for a skill they do not
possess. When a new skill is "endorsed" the attorney can prevent it from
appearing on their profile page by selecting the "skip" option on the prompt.
V. LinkedIn Groups
In addition to prompting users to recommend and/or endorse each other,
LinkedIn encourages users to join groups where they can participate in a plethora
of subject matter. While joining groups poses little to no risk of violating any
ethics rules, participating in discussion groups and/or answering questions may.
A.B.A. Model Rule 1.18 governs prospective client relationships. More
specifically, subsection (b) prohibits the use of information learned by the
attorney against the prospective client. Subsection (c) prohibits an attorney from
representing a prospective client who is adverse to the attorney's current clients.
Two significant issues arise when communicating with individuals in a
group setting on LinkedIn. First, the group members posing legal questions may
be viewed as prospective clients by state regulators. Continued communications
with these prospective clients could arguably trigger the attorney-client
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5. relationship. Second, the responses and/or advice the attorney is providing is
likely occurring without enough information to determine whether the prospective
client is in a position adverse to the responding attorney's current clients. As a
result, the attorney may inadvertently find himself or herself representing clients
with conflicting interests. Therefore, it's best to avoid responding to legal
questions posed in a group forum on LinkedIn.
VI. What About Judges?
On February 21, 2013 the A.B.A. released formal Opinion 462 which
specifically states that Judges may participate in electronic social networking so
long as they abide by the Model Code of Judicial Conduct. Upon assuming the
bench, judges accept a duty to “respect and honor the judicial office as a public
trust and strive to maintain and enhance the confidence of the legal system.”
Model Code of Judicial Conduct, Preamble [1], 2011 ed. The Model Rules go on
to state that Judges must “avoid impropriety and the appearance of impropriety.”
Model Code of Judicial Conduct, Rule 1.2, 2011 ed.
What this means for the Judge is that he or she must be mindful of the
information shared on LinkedIn and other social media sights as it may expand
beyond the Judge’s electronic social media circle. What’s more, an attorney who
“connects” with a Judge needs to be mindful of the appearance it may generate.
For example, sending a connection invitation to a Judge that you are
currently before may imply that you and/or the organization you represent are in a
position to influence the Judge. This could result in a violation of Model rule
2.4(C) for the Judge if your invitation is accepted.
Further issues arise with respect to comments and interactions on LinkedIn
as they may be construed as ex parte communications concerning a pending or
impending matter which violates Rule 2.9(A) of the Model Rules. Also, some
jurisdictions are known to require a Judge to disclose the LinkedIn relationship
prior to or at the initial appearance of the person before the court.
In election campaigns, judges and judicial candidates may use electronic
social media pursuant to Canon 4 of the Model Judicial Code, subject to a few
exceptions. While Rule 4.1(A)(8) prohibits a judge from personally soliciting or
accepting campaign contributions other than through a campaign committee
authorized by Rule 4.4, the code is silent with respect to a judge’s or campaign
committee’s method of communication.
Finally, Judges need to be certain not to publicly endorse or oppose a
candidate for any public office. Model Code Rule 4.1 (A)(3) 2011, ed. In short,
this means Judges should not push the “like” button on political candidates’ pages
or campaign materials.
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6. VII. Conclusion
In conclusion, LinkedIn and other social media sights can be used to
enhance the careers of attorneys and Judges alike so long as the Model Rules are
complied with. By treating your profile as an advertisement, avoiding reciprocal
recommendations, accepting endorsements for skills you are competent in and
being mindful of communications with the judiciary, you can accomplish this. As
a result, the use of Electronic Social Media websites, including LinkedIn, aren’t
so difficult to navigate after all.
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7. VII. Conclusion
In conclusion, LinkedIn and other social media sights can be used to
enhance the careers of attorneys and Judges alike so long as the Model Rules are
complied with. By treating your profile as an advertisement, avoiding reciprocal
recommendations, accepting endorsements for skills you are competent in and
being mindful of communications with the judiciary, you can accomplish this. As
a result, the use of Electronic Social Media websites, including LinkedIn, aren’t
so difficult to navigate after all.
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