The Risk Manager, Summer 2015

Any time lawyers get on social media they should have three risk management questions in mind:

  1. Am I violating client confidentiality?
  2. Am I creating an unintended client- attorney relationship?
  3. Am I advertising my services?

Of all the social media networks, the business focused LinkedIn offers the greatest opportunity for inadvertently running afoul of Kentucky’s professional responsibility rules on attorney advertising. The recent New York County Lawyers Association Professional Ethics Committee Formal Opinion 748 (3/10/15) offers an excellent analysis of LinkedIn and professional responsibility rules. While the New York rules are not identical to Kentucky’s, they are similar enough for Kentucky lawyers to usefully consider Opinion 748 as general guidance. Opinion 748 described LinkedIn service as follows: 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.

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. The question then becomes which aspects of an attorney profile constitute Attorney Advertising. Space limitations do not permit a detailed review of Opinion 748, however, the Committee’s conclusions provide a useful overview:

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 [SCR 3.130(7.25)]. Categorizing certain information under the heading “Skills” or “Endorsements” does not, however, constitute a claim to be a “Specialist” under Rule 7.4 [SCR 3.130(7.40)], 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 [Kentucky] lawyers should periodically monitor and review the content of their LinkedIn profiles for accuracy.

The May 2015 Hinshaw & Culbertson The Lawyers’ Lawyer Newsletter, after reviewing Opinion 748, offered this risk management advice on using LinkedIn:

Attorneys should regularly review their social media accounts, including personal LinkedIn profiles, to ensure that the posted information is accurate and not misleading, whether posted directly by the lawyer, clients or third-parties. Although not every state has opined on this issue, because social media crosses state lines and beyond, law firms and individual attorneys alike may conclude it is necessary to play it safe, at least for now. If the rules of professional conduct in any jurisdiction where a lawyer is admitted or the firm has offices require, it may be appropriate to include the “Attorney Advertising” disclaimer on their profile if, like most LinkedIn users, information is included beyond simply education and work history. Similarly, lawyers and firms should also consider including the “prior results” disclaimer … if appropriate and required by the relevant state’s rules of professional conduct.

Keeping up with the ethical issues of use of the Internet is a major challenge in today’s practice of law. We recommend Opinion 748 for your professional reading. Just Google it (last viewed on 6/9/2015). We agree with Hinshaw & Culbertson’s advice to play it safe and err on the side of posting disclaimers and advertising notices liberally. If in doubt, seek an advisory opinion from the KBA Attorneys’ Advertising Commission (SCR 3.130(7.06)).