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The article below has been republished in full courtesy of Law360, written by Andrew Strickler
A lawyer’s LinkedIn profile only constitutes attorney advertising if it meets a series of criteria, according to a recent New York City ethics opinion, and isn’t subject to legal advertising rules if not posted specifically for the purpose of attracting clients. In a detailed analysis of the professional networking and social media giant LinkedIn, the Association of the Bar of the City of New York’s Committee on Professional Ethics states that resume elements like lists of legal skills and third-party endorsements do not constitute advertising unless they are intended to be seen by potential clients. The committee also acknowledged the inherent difficulty in formulating a lasting guide for professional ethics across social media, as well as the ubiquity of lawyer and firm profiles on LinkedIn and similar platforms. “Ethics committees tasked with providing guidance on these issues find themselves straining to force fit the proverbial square peg of social media into the round hole of legal ethics — with varying degrees of success,” the opinion states. “In addition, due to the pace of technological change, bar regulators may be reluctant to amend ethics rules to incorporate social media use, out of a legitimate concern that any such rules may become obsolete as social media platforms develop and change.” The committee concludes that a LinkedIn profile must meet five criteria to meet the definition of a lawyer advertisement to be subject to content restrictions and requirements. Those criteria are that the profile was made by or for the lawyer; its primary purpose is to attract new clients and to be viewed by them; the content relates to specific legal services; and the profile doesn’t fall within a recognized exception in the definition of legal ads, according to the opinion. While LinkedIn includes many communication tools — networking groups and blogs, among others — that might be used like an ad for new clients, the committee says the many other potential uses of LinkedIn, from professional networking to job searches, argue against a blanket conclusion that its primary use is advertising. Privacy settings can also be manipulated to restrict access and send the message that the content is intended only for other lawyers or existing clients also active on LinkedIn. "The content of a communication, alone, does not necessarily make it an 'advertisement,' " the committee said. "One must also consider the attorney’s primary purpose in making the communication, as well as its intended recipients." The committee notes that its conclusion differs from an ethics opinion issued last year from the New York County Lawyer’s Association, which said a lawyer must consider a LinkedIn profile as an advertisement subject to disclosure requirements and other restrictions if it includes practice areas, skills and endorsements. If an attorney’s LinkedIn profile does meet the definition of attorney advertising under the five criteria, the committee says, it must also comply with all lawyer ad requirements, including in an “Attorney Advertising” label, the lawyer's pre-approval of posted content, and refraining from false, deceptive or misleading statements. The opinion is Formal Opinion 2015-7: Application of Attorney Advertising Rules to LinkedIn, from the Bar of the City of New York’s Committee on Professional Ethics.
The above article has been republished in full and is courtesy of Law360. For the latest breaking news and analysis, visit Law360 today.