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Lawyers and LinkedIn: Are Lawyers’ Profiles Considered Advertising?

Social media has become a necessary platform for both personal and professional identity.  For lawyers, the need to have a professional social media presence has become increasingly more important in order to develop and maintain your professional identity.  Perhaps one of the most prevalent forms of social media for lawyers is LinkedIn.  In fact, according to the ABA’s annual legal technology survey in 2014, 99% of lawyers from firms of 100 or more have a LinkedIn profile.[1]  With this overwhelming majority of lawyers on LinkedIn, lawyers must know and understand the implications of posting certain content on their LinkedIn profiles.  In doing so, lawyers must grapple with the application of ethical regulations that may govern lawyers in the social media world.

Under Rule 1 of the New York Rules of Professional Conduct, attorney advertising is subject to numerous regulations.  But is a lawyer’s LinkedIn profile considered advertising?  On the one hand, it could be construed that way since LinkedIn profiles often list a lawyer’s experiences, reputation, and successes in the field of law.   But is this LinkedIn content actually advertising? The New York State Bar says no.  In an opinion from December 2015, the New York City bar’s ethics committee shed some light on LinkedIn profiles for lawyers, and whether lawyers’ LinkedIn profiles are regulated as advertisements, if at all.[2]  The committee found that an attorney’s LinkedIn profile will rarely be considered attorney advertising.  As the ethics committee noted, there are many reasons why a lawyer has a LinkedIn profile, and they shouldn’t be forced to report it all as advertising.

The ethics committee found that a lawyer’s LinkedIn profile only counts as attorney advertising if the profile meets all five of the attorney advertising standards: (1) the profile is a communication made by or on behalf of the lawyer; (2) the primary purpose of the content is to attract new clients; (3) The content relates to the legal services the lawyer offers; (4) the lawyer intends the content to be viewed by potential clients; and (5) the content does not fall within any recognized exception to the definition of attorney advertising.[3]  If the LinkedIn content is found to be advertisement, the rule requires the attorney to comply with Rule 1.0(a) of the New York Rules of Professional Conduct, which sets the definition of what attorney advertising is in the legal world.  Under the rule, advertisements are subject to many regulations, such as requiring that all advertisements include “Attorney Advertising” language (R. 7.1(f)), which is listed on the home page of the LinkedIn site (R. 7.1(e)), and has been pre-approved by the lawyer or law firm (R. 7.1(k)).

Certainly these requirements would limit a lawyer’s ability to create a personal, yet professional brand on LinkedIn. Furthermore, having to regulate professional content on LinkedIn as advertisement would be a cumbersome and tedious process.  As such, other state and local bars should adopt New York’s standard, and allow for attorneys on LinkedIn to post their skills, experiences and endorsements on their profiles without having to comply with advertising regulations.  This would encourage the use of LinkedIn, and expand a LinkedIn user’s access to both lawyers and clients on social media.

[1] Available at http://www.mycase.com/blog/2015/02/lawyers-social-media-2015-infographic/.  This report also found that “97% of respondents from firms of 10-49 attorneys, 94% of respondents from firms of 2-9 attorneys, and 93% of solo respondents” are also reportedly on LinkedIn.

[2] New York State Ethics Opinions, Opinion 2015-7 (12/30/2015) Advertising and solicitation; Social media; Prospective clients.

[3] See N.Y.C. Bar Ass’n Comm. On Prof’l Ethics, Op. 2015-7 (Dec. 2015).

-Catherine Carney