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January 1, 2014
Board wrestles with LinkedIn issues

Declines to issue opinion dealing with hidden text and metatags

The Bar Board of Governors has narrowly decided not to issue a proposed advisory opinion relating to the deceptive use of hidden text and metatags on attorney websites but has authorized a committee to explore preparing an opinion on lawyers using the business networking site LinkedIn.

While that opinion is being considered, the board also withdrew a Bar staff opinion that advised an attorney that using LinkedIn violated Bar advertising rules.

Carl Schwait Even as the board acted at its December 16 meeting in Ft. Lauderdale, board members bemoaned the difficulty of keeping board rules and policies up to date in a fast-changing digital online world.

“Our rules are the rules,” said Carl Schwait, chair of the Board Review Committee on Professional Ethics, which reported to the board on the two issues. “The problem is the social media and advertising are going faster than we can implement rules and guidelines.”

The issues with LinkedIn arose from the service’s practice of encouraging “testimonials” for participants and those testimonials — even though not sought or controlled by the lawyers — can be contrary to Bar rules on testimonials and talking about past results.

In addition, LinkedIn posts information about lawyers under the headings of “Specialties” or “Skills and Expertise.” Bar rules prohibit lawyers from saying they are experts or have expertise or that they specialize in an area of law unless they are board certified. Lawyers cannot claim to be experts or to specialize in areas where there is no certification and only lawyers, not law firms, can use the terms.

The Standing Committee on Advertising voted to ask the Board of Governors to direct it to prepare an advisory opinion on using LinkedIn. It took that action at a November meeting where it also voted 3-1 to tell a law firm it could not list its practice areas on LinkedIn because LinkedIn would list them under a heading of “Specialties.” (See story in the November 15 Bar News.) The law firm argued such a restriction was unfair because it could not control what LinkedIn did with the information the firm provided.

The New York State Bar Association has issued an ethics opinion banning law firms from having practice areas listed as specialties on LinkedIn.

The board debate focused on whether it was practical and reasonable for the Bar to try to control what a third party like LinkedIn does online and how quickly the Bar should try to get guidance to its members.

“Why are we nitpicking something so minor on LinkedIn?” asked board member Brian Burgoon. “On endorsements, if a friend says, ‘I endorse you,’ you don’t have any control over that. . . .

“Under the headings “Skills” and “Expertise,” we can write to LinkedIn all day long and they are not going to change their side because of The Florida Bar,” he added.

President-elect Greg Coleman said the Bar should consult with the Board of Legal Specialization and Education, which oversees the certification program and has supported limiting the use of expertise and specialization to certified lawyers.

“We have a long-standing support of certification. This seems to fall right into that area,” Coleman said. “They would probably want to say something on this.”

Board members discussed having the BRCPE prepare a position partially to settle the issue quickly. But Schwait noted, “There is concern from staff you’re not going to get further input [by having the BRCPE prepare an opinion]. When you go to the Standing Committee on Advertising, you get public comment.”

“I’m troubled by our rush to judgment. We can resolve this issue today, but given the pace of technology, there would be a new LinkedIn problem by January,” board member Lanse Scriven said. “We have a lot of change coming and my concern is if we begin changing our processes, it could have other implications.”

The board ultimately took two votes. The first, on a motion from Burgoon, withdrew a September staff opinion, pending further review of the issue and issuance of the proposed advisory opinion. The 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.

The second vote ratified the BRCPE recommendation to have the Standing Committee on Advertising look into preparing an advisory opinion on attorneys and law firms using LinkedIn. Bar Ethics and Advertising Counsel Elizabeth Tarbert told the board that the SCA had sent a letter to LinkedIn after its November vote and that company officials would be meeting with the committee chair. (See sidebar story.)

On the hidden text and metatags proposed advisory opinion, Schwait said the BRCPE voted 6-2 to recommend that it be withdrawn. The opinion also said lawyers could not do things like purchase Google AdWords, which causes an ad for the purchasing lawyer to be displayed when certain words are typed into the search engine. Those words could be the name of competing law firms or lawyers.

But Scwhait said the BRCPE decided that buying Google AdWords did not violate Bar rules as long as the resulting information displayed is clearly an ad. As for the misuse of metatags or hidden text on attorney websites, he said existing Bar rules about deceptive or misleading information apply and the conduct is also punished by increasingly sophisticated search engine algorithms.

“We learned The Florida Bar is way behind on these issues and Google and other search engines already delete hidden text and [misleading] metatags,” he said.

Board member Scott McMillen, a member of the BRCPE, noted that metatags used to play an important role in how search engines functioned, but now their importance is reduced because the programs bypass the metatags and read the entire site instead.

But board member Steve Echsner, another BRCPE member, argued the opinion was needed. He noted that the SCA requested that it be directed to write the opinion because that panel saw a problem.

“I think the opinion is needed. It’s advisory in nature,” Echsner said. “While we may have rules that cover this topic, the newness and uniqueness of the Internet . . . makes this necessary.”

Added board member Bill Davis: “I think it’s consciousness-raising for Bar members to read the kinds of things they should not do but maybe their website promoter thinks are OK.”

The board voted 23-19 to accept the BRCPE recommendation to withdraw the proposed opinion.


Update: Complying with Bar rules on LinkedIn may be easier than thought

[Revised: 12-16-2014]