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November 15, 2013
LinkedIn’s headings conflict with ad rules

By Gary Blankenship
Senior Editor

The pitfalls for lawyers navigating LinkedIn, the online business networking site, should be explored in a Bar advisory advertising opinion, according to the Standing Committee on Advertising.

The committee at a special October 29 meeting voted to ask the Bar Board of Governors to direct the committee to prepare that advisory opinion. The vote came shortly after the committee voted 3-1 to tell a law firm it should not list its practice areas on LinkedIn because LinkedIn lists those under the heading of “Specialties.”

The vote included contacting LinkedIn to let it know that some of its practices could be problematic for Florida Bar members.

The committee noted that under Bar rules, only a lawyer who is certified can claim to be a specialist or expert and that privilege is limited to the lawyer, not his or her law firm. The rules also require that an advertising lawyer list the areas in which he or she is certified. Committee members said that could cause a problem as lawyers using LinkedIn lists areas under “Specialties” for which certification is not available.

“We’ve only begun to scratch the surface of what’s begun to come down the pike with this whole issue with the Bar and the Internet and social media,” said committee member Al Alsobrook, a former public member of the Board of Governors.

That also applied to the complexity of the subject. Committee members were told that individuals setting up their LinkedIn page have the option of changing the “Specialties” heading to language that complies with Bar rules, but law firms use a different program that does not allow changing the “Specialties” heading.

The committee’s action stemmed from a request from the law firm Searcy, Denney, Scarola, Barnhart & Shipley, which asked the Bar to review several items from its website and online presence. (Bar rules do not require websites to be reviewed for compliance, but in this case, the law firm requested the review.)

Patrick Quinlan from Searcy, Denney argued that the firm should be able to list its practice areas under the “Specialties” heading because the heading was chosen by LinkedIn. He said all the firm did was fill out an information form from LinkedIn and LinkedIn made the choice of listing practice areas under that heading.

But committee members noted that the New York State Bar has issued an opinion banning law firms from having practice areas listed as specialties, and most said they agreed with that.

“I just think we ought to be communicating with the LinkedIn people so they get enough input about the ethical problem of it, even if it’s a minor situation with few people exposed to it,” Alsobrook said. “Other social media can start using the same thing if you say it’s OK for LinkedIn. . . . It’s a can of worms.”

Committee member Mike Faehner cast the only dissenting vote and strongly criticized the action, saying it was being overly sensitive to the lawyers who are certified and who, under Bar rules, are the only ones who can use the terms “specialists” or “expert” in ads.

“I think the board certification rule is horrible when it comes to those terms,” he said. “Who are we protecting? The public, the 5 percent [of Bar members] who are certified, or the 95 percent of lawyers who are not certified?”

Alsobrook replied that the Bar has had a longtime policy of encouraging certification, including allowing certified lawyers to call themselves experts and specialists.

Searcy, Denney did prevail on two other issues questioned by Bar staff. The committee voted 4-0 that the firm was not violating rules when its LinkedIn site listed a lawyer who used to work at the firm and was listed as certified without giving his area of certification.

Quinlan said LinkedIn automatically generates that item from information provided separately by the former firm member and places it online without any consultation with the law firm. The committee agreed with his reasoning that the firm could not be held accountable for actions it could not control.

The committee also applied that reasoning to areas of practice that appear under a heading of “Skills and Expertise.” Quinlan said LinkedIn chose that heading title and that the firm did not solicit the listing and could not edit or remove it.

The firm has the option of appealing the “specialties” issue to the Bar Board of Governors. But the committee’s request that it be directed to write an advisory opinion on LinkedIn guarantees that issues of using online social media will be discussed by the board. LinkedIn was discussed briefly at the board’s October meeting, and Bar leaders noted that Bar rules were being pressured by rapidly changing technology and online issues.

Any opinion drafted by the committee would go to the board for its review, and also be published for members to comment prior to final adoption.

[Revised: 04-23-2014]