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New York City Bar on Lawyers and LinkedIn

Stacked3This week's Daily Record column is entitled "New York City Bar on Lawyers and LinkedIn."  My past Daily Record articles can be accessed here.

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New York City Bar on Lawyers and LinkedIn

In December 2015, The Association of the Bar of the City of New York Committee on Professional Ethics addressed the issue of whether the use of LinkedIn by attorneys constitutes attorney advertising. While I agree with the committee’s conclusions (which I discuss below) and the overall approach toward the application of the ethical rules to attorneys using LinkedIn, my general sense of positivity toward Formal Opinion 2015-7 quickly dissolved as I attempted to wade through its more than 9,000 words.

That’s right, the opinion was, by my count, 9,008 words long. That’s a lot of verbiage to address what I’ve always maintained is a relatively simple principle: online behavior is merely an extension of offline conduct. As such, general guidelines regarding lawyers’ online activities are all that is needed. Specific case-by-case — or platform-by-platform — analysis is unnecessary, especially in light of the ever-changing nature of both online activities and online platforms.

Of course, I quickly realized (beginning at word 376) that the committee and I disagreed on that very point — hence their incredibly lengthy opinion targeted toward a single online platform. The committee opined: “(The ethics rules) created in the analog age defy easy extension to the digital world and, in particular, to social media content. 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 committee then used the next 8,632 words of the opinion to reach the conclusion that, in most cases, lawyers can use LinkedIn and doing so doesn’t constitute attorney advertising.
You can either grab a cup of really strong coffee and attack the opinion yourself or, in the spirit of sharing and collegiality, I’m more than happy to summarize it for you in 400 words or less.

Without further ado, here’s the essence of the opinion in a nutshell.

Lawyers use LinkedIn in many ways, so “it should not be presumed that the primary purpose an attorney’s LinkedIn content is to attract new clients for pecuniary gain, unless it contains express language or other equally compelling evidence to support that conclusion.”

In order for an attorney’s LinkedIn Profile or other communications or content on LinkedIn to constitute attorney advertising, the following 5 conditions must be met:

“a) it is a communication made by or on behalf of the lawyer; (b) the primary purpose of the LinkedIn content is to attract new clients to retain the lawyer for pecuniary gain; (c) the LinkedIn content relates to the legal services offered by the lawyer; (d) the LinkedIn content is intended to be viewed by potential new clients; and (e) the LinkedIn content does not fall within any recognized exception to the definition of attorney advertising.”

If the attorney’s LinkedIn content meets all five of these requirements, “it is a communication that relates to the lawyer’s services and is primarily for the purpose of attracting new clients for pecuniary gain” it is attorney advertising, unless it falls within am exception to that rule. The applicable exceptions are:

“It is a communication with another lawyer or an existing client;
It is a communication with a former client that is germane to the former representation;
It is a communication in response to an inquiry from a potential client regarding the lawyer’s services;
It constitutes general marketing or branding, the purpose of which is to raise awareness about the lawyer’s services, rather than retention of the lawyer for a particular matter; or
It consists of topical or educational information, including information about legal developments in the lawyer’s practice area, unless it expressly encourages retention of the lawyer.”

Finally, should the LinkedIn content constitute attorney advertising, “the attorney must comply with the requirements of Rules 7.1, 7.4 and 7.5, including, but not limited to: (1) labeling the LinkedIn content “Attorney Advertising”; (2) including the name, principal law office address and telephone number of the lawyer; (3) pre-approving any content posted on LinkedIn; (4) preserving a copy for at least one year; and (5) refraining from false, deceptive or misleading statements.”

There. 365 words. You’re welcome.

Nicole Black is a Rochester, New York attorney and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for the modern law firm. She is also the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at niki@mycase.com.