Category Archives: Lawyer responsibilities AVVO and Linkedin

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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Filed under Attorney Ethics, joe corsmeier, Joseph Corsmeier, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer ethics opinions, Lawyer ethics opinions Linkedin.com, Lawyer responsibilities AVVO and Linkedin, Lawyer social media ethics, Lawyers and social media

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 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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South Carolina ethics advisory opinion states that lawyers are responsible for insuring that claimed third party website profiles and content comply with Bar Rules

Hello and welcome to this Friday the 13th edition of the Ethics Alert blog which will discuss the South Carolina ethics advisory opinion which states that lawyers who claim their profile on third party websites such as Martindale-Hubbell, SuperLawyers, LinkedIn, Avvo and who solicit peer ratings are responsible for insuring that the content complies with that state’s Bar Rules.  The ethics opinion is South Carolina Ethics Advisory Opinion 09-10 and the 2009 opinion is online here: http://www.scbar.org/MemberResources/EthicsAdvisoryOpinions/OpinionView/ArticleId/107/Ethics-Advisory-Opinion-09-10.aspx

The ethics advisory opinion provides a comprehensive discussion of lawyers’ responsibilities regarding business advertising and networking websites such as Martindale-Hubbell, SuperLawyers, LinkedIn, Avvo, and other such websites under South Carolina Bar Rules, which are similar to many other state Bar Rules, including Florida.  According to the opinion, “(i)nformation on (these) business advertising and networking websites are both communications and advertisements; therefore, they are governed by (South Carolina Bar) Rules 7.1 and 7.2.  While mere participation in these websites is not unethical, all content in a claimed listing must conform to the detailed requirements of Rule 7.2(b)-(i) and must not be false, misleading, deceptive, or unfair.”

The opinion also states that “(s)oliciting peer ratings does not violate the Rules of Professional Conduct.  Martindale-Hubbell has employed a lawyer rating system for more than 100 years, and federal courts have held that advertising factual information about such verifiable, independent ratings does not violate state advertising prohibitions against statements likely to mislead or create unjustified expectations about results.  See, e.g., Mason v. Florida Bar, 208 F.2d 952 (11th Cir. 2000).  More recently, advertisements about newer ratings organizations, such as SuperLawyers, have been given the same regulatory berth by state agencies.  See, e.g., In re Opinion 39 of the Committee on Attorney Advertising, 961 A.2d 722 (N.J. 2008)(per curiam)(vacating the court’s own committee’s 2006 advisory opinion prohibiting advertising of “SuperLawyers” and “Best Lawyers in America” designations, on the grounds that the prohibition is likely unconstitutional because such designations are factually verifiable). Therefore, provided that the rating is presented in a non-misleading way and is independently verifiable, including one’s rating in an online listing or elsewhere appears permissible.”

“Lawyers soliciting client comments on web-based business listings are also cautioned to adhere to Rule 8.4(a), which prohibits lawyers from violating the Rules of Professional Conduct through the acts of another. Even absent a specific prohibition against testimonials, several states have concluded that client comments contained in lawyer advertising violate the prohibition against misleading communications if the comments include comparative language such as “the best” or statements about results obtained. See, e.g., Virginia State Bar Lawyer Advertising Opinion A-0113 (2000). Rule 7.1(c) prohibits comparative language in all communications, Rule 7.1(b) prohibits statements that are likely to create unjust expectations about results, and Rule 7.2(f) prohibits self-laudatory language in advertisements. Therefore, a lawyer should monitor a ‘claimed’ listing to keep all comments in conformity with the Rules.  If any part of the listing cannot be conformed to the Rules (e.g., if an improper comment cannot be removed), the lawyer should remove his or her entire listing and discontinue participation in the service.

Bottom line:  As I have said previously, state Bar ethics opinions are not binding on lawyers; however, this ethics opinion is useful for guidance since it addresses many of the issues related to lawyers’ participation in business advertising and networking websites such as Martindale-Hubbell, SuperLawyers, LinkedIn, Avvo.  The opinion concludes that, although a lawyer’s participation in such websites is ethical, the lawyer is required to insure that the content and communications are in compliance with that state’s Bar Rules and the lawyer should monitor a claimed listing to make sure that all comments comply with the Bar Rules.  Florida lawyers should also keep in mind that the recent Florida advertising rule revisions state that the advertising rules apply to “all forms of communication in any print or electronic forum, including but not limited to newspapers, magazines, brochures, flyers, television, radio, direct mail, electronic mail, and Internet, including banners, pop-ups, websites, social networking, and video sharing media.” 

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

 

 

Leave a comment

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