Category Archives: Lawyer ethics opinions Linkedin.com

New York City Bar Association issues ethics opinion addressing LinkedIn profiles and New York attorney advertising rules

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!

Disclaimer:  this e-mail is not an advertisement and does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

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New York ethics opinion provides guidance for lawyers regarding the ethical implications of attorney profiles and content on LinkedIn

Hello everyone and welcome to this Ethics Alert which will discuss the recent New York ethics opinion which provides guidance to lawyers who use LinkedIn.com for professional enhancement as well as the ethical implications of attorney profiles.  The opinion is New York County Lawyers Association Professional Ethics Committee Formal Opinion 748 (March 10, 2015) and the link to the formal opinion is here: https://www.nycla.org/siteFiles/Publications/Publications1748_0.pdf

As the opinion notes, LinkedIn is a business-oriented social networking website which has become popular and is now commonly used by lawyers.  LinkedIn allows a lawyer to create a profile with background information, including work history and education, and links to other users based on their experience or connections.  Lawyers can also use the site to communicate with acquaintances, locate someone with a particular skill or background or to keep up with other lawyers’ professional activities and job changes.  The lawyer can also publish educational information on the site’s home page or create separate LinkedIn page.  I have a LinkedIn blog page which is here: https://www.linkedin.com/groups?home=&gid=4043538&trk=groups_most_recent-h-logo

The opinion cautions that a lawyer’s content may be an advertisement and that New York Rule of Professional Conduct 7.1 prohibits attorneys and law firms from disseminating an advertisement that contains false or misleading statements and/or claims.  The term “advertisement” includes “communications made in any form about the lawyer’s services, the primary purpose of which is retention of the lawyer or law firm for pecuniary gain as a result of the communication.”

The New York rule permits attorneys to include educational experience, but prohibits undisclosed paid endorsements and fictitious portrayals or references to lawyers not associated with the firm.  The New York rule also requires online content which is an advertisement to be labeled as “Attorney Advertising” and advertisements must also include a disclaimer that results are not guaranteed.

The opinion concludes that “(a)ttorneys 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. Categorizing certain information under the heading ‘Skills’ or ’Endorsements’ does not, however, constitute a claim to be a ‘Specialist’ under Rule 7.4, and is accordingly not barred, provided that the information is truthful and accurate.”

“Attorneys must ensure that all information in their LinkedIn profiles is truthful and not misleading, including endorsements and recommendations written by other LinkedIn users. If an attorney believes an endorsement or recommendation is not accurate, the attorney should exclude it from his or her profile. New York lawyers should periodically monitor and review the content of their LinkedIn profiles for accuracy.”

Bottom line:  As the opinion states, lawyers should carefully monitor their social media content to insure that it complies with the ethics rules in the lawyer’s jurisdiction(s).  If a communication is primarily intended to obtain clients and for pecuniary gain (and contains information that goes beyond the “tombstone language” permitted in that jurisdiction), the communication will most likely be considered to be an advertisement and all relevant rules of advertising must be followed.  This would efforts to insure that all information is accurate, that the content is not misleading, and the inclusion of any relevant disclaimers.  The Florida Bar’s advertising rules are similar to New York’s; however, lawyers in jurisdictions other than New York should not rely on this opinion and must review and comply with the relevant advertising rules.

Be careful out there.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Florida law firm files federal suit challenging constitutionality of The Florida Bar’s 2013 advertising rules, including LinkedIn and “objectively verifiable” requirements

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent federal lawsuit which was filed in the U.S. Northern District of Florida by the law firm of Searcy, Denney et al and their named partners challenging the constitutionality of the 2013 amended Florida Bar advertising rules.  The case style is Searcy Denney et al v. The Florida Bar et al.  The Complaint is here: http://guptabeck.com/wp-content/uploads/2013/12/Sercy-v-Fla-Bar-Cmplt.pdf.

The lawsuit was filed on or about December 10, 2013 against The Florida Bar in the United States District Court, Northern District of Florida alleging that certain of the Bar’s lawyer advertising rules are unconstitutional.  The lawsuit was filed because of the Bar’s application of the lawyer advertising rules to law firm websites and blogs along with the recent informal staff opinion addressing the listing law firm “specialties” on LinkedIn.com (which was recently revoked by the Bar’s Board of Governors).  The law firm and lawyer plaintiffs requested that the court to declare unconstitutional and enjoin enforcement of the requirement in Bar Rule 4-7.13 that statements in lawyer advertisements be “objectively verifiable” and the prohibition in Bar Rule 4-1.4 on a lawyer (or law firm) stating or implying that the lawyer specializes in or has expertise in an area of law such as on LinkedIn pages.

The lawsuit states as follows:  “According to the Bar, Searcy Denney’s website and blog violate a rule requiring statements to be ‘objectively verifiable’ because the websites express opinions on issues of public concern, including statements that the days ‘when we could trust big corporations … are over,’ that ‘(g)overnment regulation of … consumer safety has been lackadaisical at best,’ and that ‘when it comes to ‘tort reform’ there is a single winner: the insurance industry.’ The Bar also found garden-variety statements about the firm’s services and past cases to be ‘inherently misleading’ because the statements do not include all ‘pertinent’ facts of each case, while at the same time refusing the firm’s requests to clarify what facts the Bar considers pertinent. And it concluded that the firm’s pages on the social-media site LinkedIn.com violate several of the rules’ provisions because-among other things-LinkedIn automatically lists the firm’s ‘specialties’ and includes an unsolicited review posted by a former client.”

The lawsuit alleges that the cited advertising rules on their face and as applied by The Florida Bar violate the First Amendment of the U.S. Constitution and that the rules are void for vagueness under 42 U.S.C. § 1983.  The lawsuit requests that Rules 4-7.13 and 4-7.14 be declared unconstitutional and the Bar be enjoined from enforcing them and that the plaintiffs be awarded attorney’s fees, costs, and expenses under 42 U.S.C. § 1988.

Bottom line:  As I reported in my recent Ethics Alert blog, The Florida Bar’s Board of Governors (BOG) revoked the staff opinion on LinkedIn and authorized the Advertising Committee to draft an opinion addressing LinkedIn issues and approved guidelines for lawyers publishing past results.  The fact that the BOG revoked the opinion and requested that the Standing Committee on Advertising prepare an advisory opinion on the implications of Bar members using LinkedIn is very significant and it will be interesting to see how this lawsuit proceeds in the federal court in the Northern District of Florida.  Stay tuned…

…and let’s be careful out there!                       

Disclaimer:  this e-mail is not an advertisement and does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

 

 

 

 

 

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Florida Bar’s Board of Governors approves guidelines for advertising past results and revokes informal advisory opinion stating that LinkedIn violates Bar Rules

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent decisions of the Florida Bar Board of Governors, including approval of guidelines for advertising past results and revoking the staff advisory opinion stating the LinkedIn violates Bar Rules.  The Guidelines for Advertising Past Results are attached and are here: http://www.floridabar.org/TFB/TFBResources.nsf/Attachments/FB68CB88389B9FC785257C430053B5F9/$FILE/guidelines%20past%20results.pdf?OpenElement

The Florida Bar’s Board of Governors (BOG) met on December 13, 2013 and, based upon a recommendation of the BOG Review Committee on Professional Ethics, approved proposed guidelines for advertising past results under the 2013 revised advertising rules.  The BOG also voted to revoke the September 2013 staff advisory opinion/letter stating that the use of LinkedIn violates Florida Bar Rules and requested the Standing Committee on Advertising to prepare an advisory opinion on the use of the LinkedIn social and professional networking site by Florida lawyers.

Some of the most significant sections of the guidelines are below: 

“When an advertisement includes a dollar amount and language or an illustration that indicates that a client has received the specific amount (“My lawyer got me $X” with a photograph of a person receiving money), the dollar amount must be the net amount received by the client. The net amount is the amount after deductions for attorneys’ fees and litigation-related expenses.”

“An advertisement of past results that does not prominently disclose information necessary to prevent the advertisement from being misleading violates Rule 4-7.13(a)(2).”  Examples include failure to disclose that a civil verdict was overturned on appeal or claiming that an acquittal on one or more criminal charges was successfully obtained without disclosing that the client was convicted of other crimes in the same matter.

“Indoor and outdoor display and radio and television media do not lend themselves to effective communication of such information. Consequently, the Bar generally will not approve advertisements in such media that include references to past results.”

“Statements regarding collective or aggregated results about the amount of recovery are impermissible under Rule 4-7.13(a) because they are inherently misleading as there is no way for the viewer to know how many cases, clients, and/or lawyers are involved or the amounts and facts of individual matters that would permit consumers to make informed decisions regarding them.”

Bottom line:  This is a significant development in the ongoing evolution of the Bar’s position on the 2013 revised advertising rules and lawyers’ use of social media.  All Florida lawyers should carefully review the past results guidelines (which are important but not mandatory or binding).  Although the revocation of the informal opinion does not necessarily change the Bar’s position that the terms “Specialist” and Skills and Expertise” cannot be used by lawyers other than those who are Board certified, the fact that the BOG revoked the opinion and requested that the Standing Committee on Advertising prepare an advisory opinion on the implications of Bar members using LinkedIn is very significant.  Stay tuned…

…and let’s be careful out there!

Disclaimer:  this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

 

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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The Florida Bar’s Statewide Committee on Advertising has reversed in part and affirmed in part the recent Bar Staff Opinion on LinkedIn

Hello everyone and welcome to this update of my October 14, 2013 Ethics Alert which will discuss the decision of The Florida Bar Standing Committee on Advertising (SCA) today (October 29, 2013) regarding the 9/11/13 Florida Bar Advertising Staff Opinion.  That Staff Opinion states, inter alia, that Florida lawyers cannot list areas of practice on the LinkedIn “Skills and Expertise” page unless they are Board Certified (or the equivalent).  The September 11, 2013 staff opinion is here:  http://it-lex.org/wp-content/uploads/2013/09/Florida-Bar-Opinion-re-LinkedIn-Redacted.pdf

I have received information today from Bar Ethics and Advertising Counsel Elizabeth Tarbert updating the SCA’s decisions at its meeting today, October 29, 2013 regarding the September 11, 2013 Staff Opinion on LinkedIn.

According to Ms. Tarbert, the SCA voted 3-1 to affirm the staff opinion that the firm may not list areas of practice under the header “specialties” even though the word “specialties” is chosen by LinkedIn and cannot be modified by the firm because the firm controls whether the firm adds areas under the listing, a law firm cannot be certified, and the areas listed are not areas of certification under Rule 4-7.14(a)(4) and 6-3.4(c).

The SCA voted 4-0 to reverse the staff opinion that a listing under “Top Skills and Expertise”  of wrongful death, personal injury litigation, medical malpractice, automobile accidents, product liability (together with a numeric indicator) violates Rule 4-7.14(a)(4), because the firm states that the information is posted solely by LinkedIn and the firm has no control over the posting.

The SCA voted 4-0 to reverse the staff opinion that a posting of a former firm employee requires the area of certification when indicating board certification under Rule 4-7.14(a)(4) because the firm states that LinkedIn is solely responsible for the appearance of the posting of part of a former firm employee’s profile on the firm’s LinkedIn page and the firm has no control over the posting and cannot modify it.

The SCA also voted to contact LinkedIn to inform LinkedIn of the problem created for Florida Bar members by LinkedIn choosing the terms “specialties” and “expertise” in parts of LinkedIn profiles without the entity having the ability to modify those terms, in light of Rule Regulating The Florida Bar 4-7.14(a)(4), and to request that LinkedIn change its method of operation to permit modification of those terms by individual entities when creating their profiles.

The SCA also voted 4-0 to request that the Board of Governors direct the committee to issue a formal advisory opinion on LinkedIn, including the “specialties” header, the endorsements feature that shows endorsements for “skills and expertise.”  If the Board of Governors approves the committee’s request to adopt a formal advisory opinion, a notice will be published in the bar News inviting comments by members of The Florida Bar in good standing in accordance with the Florida Bar Procedures for Issuing Advisory Opinions Relating to Lawyer Advertising or Solicitation.

Bottom line:  This decision by the SCA reverses the advertising staff’s opinion and finds that a listing under “Top Skills and Expertise” does not violate Rule 4-7.14(a)(4) and that a posting of a former firm employee requires that does not have the area of certification when indicating board certification does not violate Rule 4-7.14(a)(4); however, it affirms the staff’s opinion that a law firm may not list areas of practice under the header “specialties” even though the word “specialties” is chosen by LinkedIn and cannot be modified by the firm.  In addition, the SCA voted to contact LinkedIn and inform that entity of the problems created for lawyers and also to ask the BOG to request the SCA to issue a formal opinion on the subject.  This appears to be a step in the right direction and I will keep everyone posted when I receive additional information.

Let’s be careful out there!

Disclaimer:  this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

 

 

 

 

 

 

 

 

 

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The Florida Bar’s Statewide Committee on Advertising has deferred consideration of informal opinion on Linkedin “Skills and Expertise” page until 10/29/13

Hello everyone and happy Columbus Day to you. This is an update of my 9/24/13 Ethics Alert blog which discussed September 11, 2013 Florida Bar Advertising Staff Opinion which states that Florida lawyers cannot list areas of practice on Linkedin.com “Skills and Expertise” page unless they are Board Certified (or the equivalent).  The September 11, 2013 staff opinion is here:  http://it-lex.org/wp-content/uploads/2013/09/Florida-Bar-Opinion-re-LinkedIn-Redacted.pd

I was advised by the Ethics and Advertising Counsel for The Florida Bar today that the SCA was unable to consider the staff opinion at its October 8, 2013; however, the committee plans to consider the opinion at its meeting on October 29, 2013.  I will keep everyone advised.

Bottom line:  As I stated in my previous Ethics Alert, the staff opinion is not binding and is intended to provide guidance to lawyers; however, lawyers must be aware that The Florida Bar has taken this position.  This is clearly an important issue that must be addressed by The Florida Bar and the Bar’s Statewide Committee on Advertising will be considering the issue to potentially draft a formal advertising opinion at its next meeting on October 8, 2013.  If you would like to provide your comments to the Statewide Committee on Advertising, you can send them to Elizabeth Tarbert, the Ethics and Advertising Counsel for The Florida Bar who oversees the SCA, or you can attend the meeting and ask to be heard.

Be careful out there!

Disclaimer:  this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670jcorsmeier@jac-law.com

www.jac-law.com

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Florida Bar Staff Opinion states that Florida lawyers are prohibited from listing areas of practice on Linkedin.com “Skills and Expertise” page unless certified in those areas

Hello and welcome to this Ethics Alert blog which will discuss the September 11, 2013 Florida Bar Advertising Staff Opinion which states that Florida lawyers cannot list areas of practice on Linkedin.com “Skills and Expertise” page unless they are Board Certified (or the equivalent).  The staff opinion is here: http://it-lex.org/wp-content/uploads/2013/09/Florida-Bar-Opinion-re-LinkedIn-Redacted.pdf    

As you most likely already know if you are a member of Linkedin.com, Linkedin.com lawyers can be endorsed for their “Skills and Expertise” on a separate page.  As you might also know, the endorsements can come from anyone and can be for multiple areas of practice.  One of the questions that I have been asked is whether a lawyer is permitted to accept an endorsement for “Skills and Expertise” when that lawyer is not Board Certified (or the equivalent under the Bar Rules).  I have responded that I believed that the Bar would have an issue with such endorsements and would state that the endorsements would violate the Bar Rules unless the lawyer was certified in the area in which he or she was endorsed.

 

Cynthia Booth, a staff advertising counsel for The Florida Bar’s Ethics and Advertising Department recently rendered a Staff Opinion stating that such endorsements for “Skills and Expertise” are prohibited unless the lawyer is certified in that area of practice.  The opinion states:

“A lawyer can only state or imply that the lawyer is ‘certified’, a ‘specialist’, or an ‘expert’ if the lawyer is certified by The Florida Bar, by a certification program accredited by the American Bar Association, or by a state bar with certification standards comparable to those of The Florida Bar.  Rule 4-7-14(a)(4).  Certification is specific to individual lawyers; a law firm cannot be certified, and cannot claim specialization or expertise in an area of practice.  Rule 6-3.4(c).  Based on these rules, it is staff’s position that you may not list your areas of practice under the header “Skills and Expertise” as you are not board certified.  While Rule 4-7.14(b) permits an attorney to use language that is potentially misleading if the advertisement contains information or statements that adequately clarify the potentially misleading issue, it is staff’s position that providing language in the Linkedin profile indicating that you are not board certified and not an expert will not remedy this issues.  I have included a copy of New York State Bar Association Opinion 972 which reaches a similar conclusion.”

Bottom line:  This staff opinion is not binding and is intended to provide guidance to lawyers; however, lawyers must be aware that The Florida Bar has taken this position in the recent staff opinion.  This is clearly an important issue that must be addressed by The Florida Bar and the Bar’s Statewide Committee on Advertising will be considering the issue to potentially draft a formal advertising opinion at its next meeting on October 8, 2013.  If you would like to provide your comments to the Statewide Committee on Advertising, you can send them to Elizabeth Tarbert, the Ethics and Advertising Counsel for The Florida Bar who oversees the committee, or you can attend the meeting and ask to be heard.

Let’s be careful out there!

Disclaimer:  this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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