A lawyer may ‘friend’ an unrepresented adversary to obtain information for a case, provided the lawyer first discloses the client that he or she is representing, the Committee on Professional Ethics of the Massachusetts Bar Association has ruled. A lawyer for a party may ‘friend’ an unrepresented adversary in order to obtain information helpful to [...]
TAG | legal ethics
An update from LinkedIn this morning indicated that a connection of mine had endorsed me as being skilled in litigation. The person who endorsed me is someone I know only through the Internet. We have never met or spoken, that I can recall. That means that the person has no first-hand knowledge of my skill in litigation. I do sometimes write about litigation-related topics, here and elsewhere, and arguably that could provide some basis for this person to decide that I am skilled in this area. But, frankly, it happens with some frequency that I receive an endorsement from someone I have never met.
That got me wondering about the ethics of these LinkedIn endorsements. Under ABA Model Rule 7.1, a lawyer is not to make any false or misleading claims about his or her services. If a lawyer permits an endorsement to remain on the lawyer’s LinkedIn profile that the lawyer knows to be misleading, even if someone else posted the endorsement, that would seem to be a problem under Rule 7.1.
Turning to Google in search of an answer, I discovered that smarter people than I had already considered this question. Their answers, however, are not in agreement.
LinkedIn introduced endorsements in September 2012. Now, users’ profiles include a “Skills & Expertise” section where you see all the rows of tiny faces representing the people who have endorsed you for various skills.
Last January, Andrew Perlman wrote a thoughtful post about this at Legal Ethics Forum. In addition to teaching professional responsibility at Suffolk University Law School and directing its Institute on Law Practice Technology and Innovation, Perlman was chief reporter for the ABA Commission on Ethics 20/20. Here is what he says about the scenario I described above:
[L]et’s imagine that someone offers to endorse me who has no basis for assessing my skills in a particular area. Perhaps the endorser is a friend who has never worked with me. Or imagine that someone offers to endorse my skills or knowledge in an area I know very little about. For example, one of my contacts offered to endorse me in the area of “International Law,” even though I know very little about the subject. If I accept endorsements of this sort (i.e., endorsements from people who have not worked with me or endorsements of skills/knowledge I don’t have), it seems to me that my acceptance of the endorsement and making it visible to my contacts would be misleading and violate Rule 7.1.
Perlman goes on to say that it would be OK for a lawyer to accept an endorsement from someone who actually knows the lawyer’s skills and abilities and assuming the lawyer actually has those skills and abilities. (Some states, however, prohibit testimonials of any kind.) One other issue to be wary of, he adds, is the reciprocal endorsement (or the quid pro quo endorsement), which could violated Model Rule 7.2(b).
In an article in the Illinois Bar Journal, lawyer Adam W. Lasker interviews Michael P. Downey, the former chair of the Illinois State Bar Association Standing Committee on Professional Conduct, on the ethics of LinkedIn endorsements. Endorsements are OK, Downey says, provided they contain no false statements and are not given as a quid pro quo. Just because the endorser does not know you directly does not make it a false statement, he argues.
[H]e feels justified accepting some endorsements from strangers who may have indirectly come to honestly appreciate his abilities and integrity as a lawyer.
“I’ve written about 60 or 70 articles on legal ethics, so maybe they’ve endorsed me because they’ve read my articles,” he said.
In comments posted to Andrew Perlman’s post, Joshua M. King, general counsel for Avvo, takes a somewhat contrary view. He argues, first, that lawyers cannot be held liable for endorsements posted by third parties, because any ethics restrictions would be preempted by Section 230 of the Communications Decency Act. He further argues that the endorser’s actual familiarity with the lawyer’s skills does not matter, provided the lawyer actually has the skill. He also notes that if someone endorses you for a skill you do not have, it will not appear on your profile unless you allow it to.
At High Tech Intellectual Property Legal Blog, California lawyer Judith Szepesi takes the position that these endorsements do not violate Model Rule 7.1 because they are not statements by the lawyer about his or her own skills. She adds, however, that under California’s rules, these endorsements may constitute testimonials and require the lawyer’s LinkedIn profile to carry a disclaimer.
I am no ethics expert. However, I think it is significant that LinkedIn provides the ability to “hide” endorsements others have given you. (You can hide any single endorsement or choose to hide all endorsements by default.) If someone gives you an endorsement that you believe is false or misleading, and if you do not remove it, then you are effectively accepting it and allowing it to be communicated to anyone who views your LinkedIn profile. To my mind, that brings it within the purview of Model Rule 7.1.
Florida has become the latest state to opine on the legal ethics of cloud computing. The proposed opinion follows other states that have addressed the issue in concluding that lawyers may ethically use cloud computing, provided they exercise due diligence to ensure that the cloud provider maintains adequate safeguards to protect the confidentiality and security of client information.
Under the Florida Bar rules, members of the bar are given an opportunity to comment on the opinion before it becomes final.
I have a more detailed post about the opinion at the Catalyst E-Discovery Search Blog.
Would you consider it ethical for a lawyer to post the following to a social media site such as Facebook:
“Another great victory in court today! My client is delighted. Who wants to be next?”
In California, that post would violate the Rules of Professional Conduct, according to a recent ethics opinion issued by the State Bar of California’s Standing Committee on Professional Responsibility and Conduct. The opinion, issued late in December, considered the following issue:
Under what circumstances would an attorney’s postings on social media websites be subject to professional responsibility rules and standards governing attorney advertising?
More specifically, it considered five actual posts by an attorney to a social media site that, although not identified as such, sounds to have been Facebook. According to the opinion, the site was one where “only individuals whom the Attorney has approved to view her personal page may view this content.” It went on to say that the attorney had about 500 approved contacts, or “friends,” who were a mix of personal and professional acquaintances, “including some persons whom Attorney does not even know.”
The ethics panel hinged its analysis on Rule 1-400 of California’s Rules of Professional Conduct. For that rule to apply to social media postings, two conditions would have to apply, the panel said:
- There would have to be a “communication,” which the panel suggested should apply in the broadest sense of the word.
- The communication would have to concern the lawyer’s “availability for professional employment.”
With regard to the post that I quoted above, the panel said that, had the attorney simply said, “Another great victory in court today,” then Rule 1-400 would not have applied. “However, the addition of the text, ‘[w]ho wants to be next?’ meets the definition of a ‘communication’ because it suggests availability for professional employment.”
Having found that the statement was subject to the rule, the panel went on to say that it violated the ethical rule concerning client testimonials.
An attorney cannot disseminate “communications” that contain testimonials about or endorsements of a member unless the communication also contains an express disclaimer. … Attorney has not included a disclaimer, so her status posting is presumed to violate rule 1-400.
The statement further violated ethical rules, the panel said, because it includes “guarantees, warranties, or predictions regarding the result of the representation.” “The post expressly relates to a ‘victory,’” the panel explained, “and could be interpreted as asking who wants to be the next victorious client.”
Here are the other statements the panel considered. See if you can predict how they ruled:
- “Case finally over. Unanimous verdict! Celebrating tonight.”
- “Won a million dollar verdict. Tell your friends and check out my website.”
- “Won another personal injury case. Call me for a free consultation.”
- “Just published an article on wage and hour breaks. Let me know if you would like a copy.”
OK, got your answers down? Here is what the panel said:
- Not a communication under the rule. “Attorney status postings that simply announce recent victories without an accompanying offer about the availability for professional employment generally will not qualify as a communication.”
- A communication cover d by the rule.
- A communication covered by the rule, thanks to the second sentence.
- Not covered by the rule. “The attorney is merely relaying information regarding an article that she has published, and is offering to provide copies.”
The ethics panel concludes its opinion with this summary:
Attorney may post information about her practice on Facebook, Twitter, or other social media websites, but those postings may be subject to compliance with rule 1-400 if their content can be considered to be “concerning the availability for professional employment.” Such communications also may be subject to the relevant sections of California Business and Professions Code sections 6157 et seq.
My summary would be a bit shorter: “Be careful what you post out there!”
A hat tip to Perry Segal at e-Discovery Insights for alerting us to this ruling.
Virtual lawyering is all the rage, but what exactly does it mean? Merriam-Webster tells us that, in this context, “virtual” means “being on or simulated on a computer or computer network.” Lawyers such as Stephanie Kimbro and Richard Granat are good examples of lawyers “being on” a computer network. Both have pioneered, each in their own way, innovative and ethical uses of the Internet to deliver legal services.
Then there are the so-called virtual lawyers who seem to fall into the “simulated on” part of the definition. They use the Internet to obfuscate the nature of the services they deliver. They use obscure marketing and websites to simulate something that is not exactly what it seems, to market themselves through smoke and mirrors.
I’ve criticized this style of confusing marketing in the past, writing in one instance about a number of lawyer websites, all created by the same marketing firm, that created misleading impressions of a lawyer’s areas of practice and geographic location.
Now comes a disciplinary case out of Virginia involving so-called virtual law offices that presents many of these same issues. In the case brought by the Virginia State Bar, a three-judge panel addressed what it described as “a number of issues of first impression given the burgeoning use of the internet for advertising and marketing and to create ‘virtual’ law offices.”
Here is some of what the bar said the lawyer did to market his practice:
- Represented his firm as a practice of multiple lawyers in multiple cities throughout the United States, when in actuality his firm consisted of just him, “with his so-called associates being independent contractor attorneys paid on a commission basis.” His marketing described the practice as a “national law firm” with offices in Virginia, Maryland, Massachusetts and India.
- Represented each of the attorneys in his firm as focusing primarily in one area of law, when in fact each of the attorneys handled several areas of practice. “Each attorney in our law firm primarily focuses his or her practice in only one area of law,” the website said. “Our … lawyers … don’t attempt to dabble in unrelated areas of law.”
- Represented that his firm had at least six offices within Virginia, when in fact he had a single office, with the other five addresses being unstaffed spaces, some in executive office suites shared with other entities on as as-needed reservation basis.
The lawyer contested these charges but made concessions to address them. With respect to the lawyers who did work for him, he agreed to alter his agreements with them to make them employees of his firm. With regard to the descriptions of the attorneys’ practice areas, he agreed to amend the attorneys’ profiles to reflect that they handle multiple areas of law. With regard to the unstaffed offices, the lawyer agreed to revise his website to identify them as “client meeting locations.”
The three-judge panel concluded that that, through this marketing, the lawyer violated Rule 7.4 of the state’s Rules of Professional Conduct, “Communication of Fields of Practice and Certification.” But the panel also noted that the lawyer, since first being presented with the disciplinary charges, had “responded to the Bar’s concerns and sought guidance from the Bar.” The panel also noted “that the Respondent and others like him have rights to engage in commercial speech under the First Amendment.”
In light of these considerations, the panel accepted a disposition agreed on by the parties in which the lawyer would receive only a public reprimand.
That may be the right outcome, given the lawyer’s willingness to revise his misleading marketing. But I hope the bar’s leniency doesn’t lead other lawyers to jump on the bandwagon of obfuscation. “Virtual” should not mean presenting yourself as something other than what you are. Above all else, lawyers have a duty of honesty. Their marketing should conform to that.
[A hat tip to the always-fascinating Legal Profession Blog for reporting this case.]
Read a post I wrote about the ruling here: Mass. Joins Other States in Ruling that Cloud Computing is Ethical for Lawyers.
I gave two presentations at the Rhode Island Bar Association annual meeting June 15. The first, on cloud computing for lawyers, I posted here. Below is the second, “20 Tips for Seizing the Power of Social Media.” The first half covers marketing, the second half covers ethics.
At the American Bar Association annual meeting in August, the House of Delegates will take up the recommendations of the ABA Commission on Ethics 20/20. The commission spent three years conducting an in-depth review of whether advances in technology requires changes to the Model Rules of Professional Conduct. The commission has recommended a number of changes to the rules and comments, addressing issues that range from client confidentiality to client development.
On this week’s Lawyer2Lawyer, we consider the commission’s recommendations with two guests: Andrew M. Perlman, chief reporter for the Commission on Ethics 20/20 and a professor of law at Suffolk University Law School, and Bradley S. Shear, Maryland attorney and author of the blog, Shear on Social Media Law.
Listen to the show at the Legal Talk Network.
Here are the slides from the presentation I gave Friday at the annual meeting of the Rhode Island Bar Association.
In this last of the four videos I prepared for the 38th ABA National Conference on Professional Responsibility panel, “Old Rules, New Tools: The Challenge of Social Media for Bar Associations and Lawyers,” I answer Simon Chester’s question, “Is there anyone a lawyer should not friend on Facebook?”
(For more on why I did these videos, see my first post in the series.)