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November 1, 2013
LinkedIn presents ad rule challenges

By Gary Blankenship
Senior Editor

The Bar’s Standing Committee on Advertising set October 29 (after this News went to press) for a special meeting on a high-profile case on what lawyers can post on LinkedIn, the professional networking Internet site.

The issue was discussed by the Bar Board of Governors at its October 4 meeting, and has been the subject of articles in state and national news media.

The crux of the issue is this: Bar rules (and the rules of several other state bars) prohibit lawyers from saying they are expert in an area of law or specialize in an area of law unless they are certified in that area by the Bar or an organization recognized by the Bar. LinkedIn allows any lawyer to list areas of practice under a header shown by LinkedIn as “Specialties.” It also allows customers and clients to post reviews or comments about a lawyer that is shown by LinkedIn as an endorsement for expertise and skill in a particular area, regardless of whether the lawyer is board certified.

The Bar has not formally taken a position on the issue, although a September 11 staff opinion held that it would violate Rule 4-7.14(b) for a lawyer to list an area of practice under the “Skills and Expertise” section of a LinkedIn account unless the lawyer is certified in that area. Since law firms cannot be certified, it would violate Bar rules for a firm to list areas of practice under “Skills and Expertise.”

A staff opinion is a letter from a member of the Bar’s Ethics and Advertising Department and is intended as guidance for the inquiring lawyer. It does not commit the Bar to a position unless it has been reviewed by the Standing Committee on Advertising, after which it may be further appealed and reviewed by the Board of Governors.

The October 29 meeting will consider an appeal on the LinkedIn issue from the Searcy, Denney, Scarola, Barnhart & Shipley (which is not the firm that sought the September 11 staff letter). Searcy Denney is appealing a May 17 letter over a broad range of advertising issues, including LinkedIn. The Standing Committee on Advertising has dealt with the other issues, but set the special meeting for the LinkedIn matters.

The May 17 letter cited four issues related to the firm’s LinkedIn information. One noted an attorney in the firm was identified as being certified without the area of certification being given, as required in Bar Rule 4-7.14(a)(4). The second was under the heading of “Expertise,” in which the firm was listed in five different practice areas. The Bar letter noted only lawyers, not firms, may be certified, and hence a law firm may not claim “expertise” in an area of law.

The letter also objected to a firm attorney being identified as “Most Recommended” by LinkedIn, saying that information could not be objectively verified, and to a review by a client that included information that could not be objectively verified, in violation of Bar rules.

In its response letter requesting a review by the Standing Committee on Advertising, the firm argued that the certified lawyer mentioned was a former member of the firm. Firm Marketing Director Joan Williams contended, “We have no control, however, over which former employees appear on our LinkedIn profile, how they choose to describe themselves, or how much of that description LinkedIn displays on the screen.”

As for the listing of several practice areas, Williams said the firm filled out an online information form which LinkedIn used to create the “Specialties” listings for the firm and a separate “Skills & Expertise” section which lists firm employees. “[W]e did not choose those titles and have no way to change them. Although we could delete all areas of practice from the firm’s profile, we know that would make the firm more difficult to find on the site and put us at a disadvantage against other firms,” she said.

On the “Most Recommended” lawyer, Williams wrote, “[W]e cannot control whether other LinkedIn users recommend our lawyers or how LinkedIn chooses to display that information.”

And on the client review, she wrote, “Again, we did not solicit the review or choose to include it on our LinkedIn profile. We cannot, and, in our opinion, should not be permitted to edit its content.”

The Florida Bar is not the first to tackle the issue. The New York State Bar Association’s Committee on Professional Ethics has issued an opinion that lawyers may not list areas of practice under the “Specialties” section of LinkedIn unless they are certified in those areas.

Likewise, the Philadelphia Bar Association Professional Guidance Committee issued an opinion saying under Pennsylvania rules lawyers have to be careful how they list practice areas on LinkedIn and recommending that lawyers monitor third-party reviews to ensure that misleading information is not posted.

In its backup materials for the Standing Committee on Advertising, Bar staff noted that LinkedIn does allow members the option of hiding endorsements, which would avoid the problem of third parties making misleading statements or identifying lawyers as specialists or experts in areas of law where they are not certified.

The LinkedIn issue was briefly discussed at the Bar Board of Governors October 4 meeting after it was raised by Executive Director John F. Harkness, Jr., who noted an article in the South Florida-based Daily Business Review about social media and Bar rules.

Harkness noted the article quoted the September 11 staff opinion but addressed it as though it were a formal Bar opinion rather than guidance for a Bar member.

Bar President Eugene Pettis said the issue is an example of the challenges the Bar faces in a world with rapid technology and communications changes.

[Revised: 09-01-2014]