LinkedIn and Legal Ethics
The Bencher—January/February 2019
By Francis G.X. Pileggi, Esquire
This short ethics column will address some of the issues raised in connection with the use by lawyers of the online professional networking service known as LinkedIn. The American Bar Association’s Model Rules of Professional Conduct, which most states adopt—often with their own modifications—to regulate attorneys’ conduct, were not originally designed for, and often do not directly address, some of the issues that arise in connection with the creation of a profile on LinkedIn and the use of various networking options that are available on LinkedIn. Several ABA leaders who were instrumental in finalizing the most recent update of the Model Rules at the August 2018 annual meeting of the ABA, acknowledge that even the updated Model Rules do not address all of the issues that might arise in connection with the use by lawyers of LinkedIn. See Scott Flaherty, “ABA Clarifies Rules on Lawyer Advertising (Sort Of)”, The American Lawyer, (August 9, 2018).
LinkedIn describes itself as “the world’s largest professional network with more than 562 million users in more than 200 countries and territories worldwide.” https://about.linkedin.com. LinkedIn describes its “mission” as simply to “connect the world’s professionals to make them more productive and successful.” Id. As an online networking facilitator, in addition to the basic level of membership, which is free, different levels of premium membership are available on LinkedIn at additional cost. LinkedIn “suggests” other potential contacts for its members and with a simple click LinkedIn will send an invitation to others who LinkedIn suggests as likely candidates to join one’s online network. Clicking on an icon from one’s smartphone will generate a generic message requesting suggested contacts to connect, or the message can be customized with a specific tailored message. LinkedIn also provides more complex suggestions for sales professionals based on the large volume of data which can be searched according to industry type, and level of management, for example. One may also search the LinkedIn database for others with common interests. LinkedIn also identifies which of the contacts in one’s existing network are connected to prospects that one might like to meet.
The Model Rules of Professional Conduct, especially the regulations on attorney advertising, were designed to protect the unsuspecting and unsophisticated consumer of legal services who would be ill-served by what has been referred to as “ambulance chasers.” Those concerns are not present when, for example, a business lawyer is interacting on LinkedIn with in-house counsel, or an out-of-state lawyer is seeking local counsel online. The automated features of LinkedIn often suggest others on the LinkedIn network who might have similar interests, based on data about the over 500 million people in its database.
Nonetheless, the chair of the governing council of the ABA’s professional responsibility section, who was instrumental in the recent amendments to Model Rules 7.1 through 7.5 regarding lawyer advertising, explained in the referenced article in The American Lawyer, that the recent amendments were designed to clarify and focus on the need to prohibit misleading advertising, but at the same time the drafters did not intend to limit access to justice—especially by those sectors of society traditionally underserved by the legal profession.
In addition, many complaints about lawyer advertising come from other lawyers who are concerned about competition, as opposed to unsuspecting consumers the rules were initially designed to protect. Competition among lawyers was not the original focus of regulating advertising by lawyers.
Although there are aspects of the use of LinkedIn by lawyers that are not directly addressed by the Model Rules, or which the Model Rules were not designed to address, the basic principles are still applicable and are worth reviewing. For example, Model Rule 7.1 prohibits false or misleading information and this would apply to prohibit such information in the profile that a lawyer may have on LinkedIn. In addition, the confidentiality requirements in Rule 1.6 prohibit the revelation of certain types of information relating to the representation of a client, and this fundamental concept clearly applies to a lawyer’s activity on LinkedIn.
There are conflicting opinions from the legal ethics committees of various bar associations about what constitutes lawyer advertising, but Model Rule 7.2(c) requires any communication considered advertising to include various disclaimers. Reasonable people can differ about what constitutes advertising by a lawyer, but the use of one’s basic LinkedIn profile should not be included in that category.
A general tip provided in a book with advice for lawyers who use LinkedIn suggests that a rule of thumb about what one can and cannot do on LinkedIn, or on other social networking sites, is to avoid anything that would be inappropriate in a room full of people at a cocktail party or that one would not want to read on the front page of a major newspaper. See Dennis Kennedy and Allison C. Shields, LinkedIn in One Hour for Lawyers, at 106 (2nd Ed. 2013). Some legal ethics opinions of bar associations appear to be cognizant of the polychromatic nuances involved with the more automated features provided by sites such as LinkedIn. See New York State Bar Association’s Commercial and Federal Litigation Section, Social Media Ethics Guideline 1(c) (May 11, 2017) (recognizing the permissibility generally of an invitation to others on LinkedIn to view one’s profile on LinkedIn).
In my view, LinkedIn provides an opportunity for ethical networking among a large pool of people as long as lawyers adhere to the fundamental principles of attorney conduct to which we all aspire.
Francis G.X. Pileggi, Esquire is the member-in-charge of the Wilmington, Delaware, office of Eckert Seamans Cherin & Mellott, LLC. He summarizes key corporate and commercial decisions of Delaware Courts at www.delawarelitigation.com.