Hello and welcome to this Ethics Alert blog which will discuss the recent Formal Opinion of the Association of the Bar of the City of New York Committee on Professional Ethics which concluded that a lawyer’s LinkedIn profile is not subject to New York Bar advertising rules if it is not posted specifically for the purpose of attracting clients and the profile will be considered to be attorney advertising only if it meets all five of the criteria listed in the opinion. The opinion is Formal Opinion 2015-7: Application of Attorney Advertising Rules to LinkedIn (December 2015) and the link to the opinion is here: http://www.nycbar.org/ethics/ethics-opinions-local/2015opinions/2350-formal-opinion-2015-7-application-of-attorney-advertising-rules-to-linkedin
According to the opinion, a New York lawyer’s LinkedIn profile or other content will be considered to be lawyer advertising only if it meets all five of the following criteria:
- it is a communication made by or on behalf of the lawyer;
- the primary purpose of the LinkedIn content is to attract new clients to retain the lawyer for pecuniary gain;
- the LinkedIn content relates to the legal services offered by the lawyer;
- the LinkedIn content is intended to be viewed by potential new clients; and
- the LinkedIn content does not fall within any recognized exception to the definition of attorney advertising.
The opinion further states that “(g)iven the numerous reasons that lawyers use LinkedIn, it should not be presumed that an attorney who posts information about herself on LinkedIn necessarily does so for the primary purpose of attracting paying clients. For example, including a list of ‘Skills’, a description of one’s practice areas, or displaying ‘Endorsements’ or ‘Recommendations’, without more, does not constitute attorney advertising.”
The opinion concludes that: “(i)f an attorney’s individual LinkedIn profile or other content meets the definition of 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. These are only some of the requirements associated with attorney advertising. Before disseminating any advertisements, whether on social media or otherwise, the attorney should ensure that those advertisements comply with all requirements set forth in Article 7 of the New York Rules.
Bottom line: According to this New York City ethics opinion, a LinkedIn profile will not be considered to be a lawyer advertisement unless certain conditions are met. It is my opinion that most, if not all, other jurisdictions would agree with this analysis and opinion. This opinion provides a good summary of the conditions which may cause a LinkedIn profile to become a lawyer advertisement.
Be careful out there!
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Joseph A. Corsmeier, Esquire
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