New Social Media Opinions: West Virginia and Colorado

Recently, two more states, West Virginia and Colorado, joined the legal ethics conversation regarding social media, issuing opinions that are generally consistent with most other states’ social media opinions.

In September 2015, the Lawyer Disciplinary Board of West Virginia issued new social media and social networking guidelines titled “Social Media and Attorneys.” Specifically, the Board addressed the following topics: attorney competency, taking down posts, avoiding contact with represented persons, contacting unrepresented persons, monitoring third-party reviews and endorsements, protecting confidentiality, honesty in endorsing other lawyers, researching jurors, friending judges, and avoiding inadvertent lawyer-client relationships. The Board concluded in part that attorneys may not make statements on social media that the attorney knows or reasonably knows will be disseminated publicly and will have “a substantial likelihood of materially prejudicing an adjudicative proceeding,” subject to certain exceptions listed in the rule on trial publicity. Additionally, the Board opined that attorneys may accept client reviews but must monitor the reviews for accuracy. Regarding advising clients on their social media presence, the Board concluded that attorneys may advice their clients to change the privacy settings of their social media pages, but attorneys may not instruct their clients to “destroy, alter, or conceal any relevant content on their social media pages.” Instead, attorneys must take the appropriate steps to preserve the information in the event that it is discoverable or relevant to the clients’ cases.

Also in September 2015, the Colorado Bar Association Ethics Committee issued its opinion titled “Use of Social Media for Investigative Purposes.” The Committee concluded that investigation of public profiles and posts is always permitted. Limits apply, however, when permission is requested to view restricted or private content. The opinion addresses ethical issues that arise when lawyers, either directly or indirectly, use social media to obtain information regarding witnesses, jurors, opposing parties, opposing counsel, and judges.

Both West Virginia and Colorado came to the following conclusions, among others: Regarding attorneys reviewing jurors’ Internet presence, attorneys may review public sections of a juror’s social networking presence, but may not attempt to access private sections of a juror’s social media page or use the assistance of a third party to do so. Moreover, attorneys may not seek to communicate ex parte with a judge through social media concerning a matter or issue pending before the judge. The Colorado opinion further states that attorneys may not request permission to view restricted portions of a judge’s social media profile while the judge is presiding over a case in which the lawyer is involved as counsel or as a party.

In a nutshell, both opinions conclude that lawyers must comply with the ethics rules when using social media just as when using other forms of communication.

To read the full West Virginia opinion, click here. To read the full Colorado opinion, click here.

Is Your LinkedIn Profile Attorney Advertising?

Does an attorney’s LinkedIn profile necessarily constitute attorney advertising?

In analyzing whether a LinkedIn profile is advertising, The Association of the Bar of the City of New York Committee on Professional Ethics Formal Opinion 2015-7 (“Opinion”) applied the New York Rules of Professional Conduct’s definition of an advertisement, which is “any public or private communication made by or on behalf of a lawyer or law firm about that lawyer or law firm’s services, the primary purpose of which is for the retention of the lawyer or law firm.”

The Committee concluded that if the primary purpose of an attorney’s LinkedIn profile is not to attract new clients, it is not advertising. So, how does an attorney define primary purpose? The Opinion explains that if the following criteria are met then a LinkedIn profile is advertising:

  1. It is communication made by or on behalf of the lawyer;
  2. The primary purpose of the LinkedIn content is to attract new clients to retain the lawyer for pecuniary gain;
  3. The LinkedIn content relates to the legal services offered by the lawyer;
  4. The LinkedIn content is intended to be viewed by potential new clients; and
  5. The LinkedIn content does not fall within any recognized exception to the definition of attorney advertising

The Opinion’s elaboration on each of the criteria may be found here.

So what do you do if your LinkedIn profile is considered an advertisement?

The Committee noted that a LinkedIn profile that constitutes advertising must comply with all of New York’s attorney advertising rules, including, but not limited to, the inclusion of the label “Attorney Advertising” legibly placed on the profile along with the name, principal law office address, and telephone number of the attorney. Additionally, the advertisement must not be deceptive or misleading.

The Committee also cautioned attorneys to personally “pre-approve” their advertisements, and reminded them that LinkedIn is considered to be a “computer-accessed communication” and thus must be retained for at least one year in accordance with New York’s attorney advertising rules.

The Opinion is novel in that it is the first ethics advisory opinion to conclude that all attorney LinkedIn webpages (or other social media profiles) are not necessarily advertisements. It will be interesting to see whether other bar associations and state bars follow New York City’s lead.

NYCLA Releases Latest Opinion to Address Ethical Implications of Lawyers on LinkedIn

On March 10, 2015, the New York County Lawyers Association Professional Ethics Committee released Formal Opinion 748 addressing the ethical implications of attorney profiles on LinkedIn—a professional networking website. LinkedIn allows users to connect with other users, providing them access to their respective profiles and information that may otherwise be private depending on the individual user’s settings. LinkedIn also allows users to control the information displayed on their profile, which may be objective, such as educational background and work experience, as well as subjective, such as skills, recommendations, and endorsements.

Because of the various profile options and privacy settings available, confusion has arisen with respect to how attorneys should properly fill out and operate their LinkedIn accounts. As such, the committee chose to clarify three questions:

  1. Whether a LinkedIn profile is considered “Attorney Advertising”;
  2. When it is appropriate for an attorney to accept endorsements and recommendations; and
  3. Information attorneys should include (and exclude) from their LinkedIn profiles to ensure compliance with the New York Rules of Professional Conduct.

The committee determined that attorneys may maintain profiles on LinkedIn, “containing information such as education, work history, areas of practice, skills and recommendations written by other…users.” If, however, an attorney includes additional information, such as specific skills or endorsements, it may be considered Attorney Advertising and is therefore subject to the provisions in Rule 7.1. Moreover, according to Rule 7.4, attorneys may not list information about their “skills or practice areas” under headings labeled “Specialties,” but may otherwise list them under the headings “Skills” or “Endorsements.”

Furthermore, relying on Pennsylvania Formal Ethics Op. 2014-300, the committee noted that “attorneys must ensure that all information in their LinkedIn profiles is truthful and not misleading, including endorsements and recommendations by other LinkedIn users.” If the information is not accurate, it should be excluded from the attorney’s profile. Ultimately, New York lawyers should regularly monitor and review the content of their LinkedIn profiles to avoid potential ethical violations.

Click here to read more. Click here to read the full text of the opinion.

We previously reported on the NYCLA opinion in our post on attorney endorsements. To read that post click here.

So, What About LinkedIn Endorsements? LinkedIn & The Attorney Advertising Rules

LinkedIn Endorsements are one of the many attractive features of the professional networking website that have left the population of attorney-LinkedIn users befuddled as to whether they are ethically permitted to engage in such LinkedIn etiquette. After all, if an attorney maintaining a LinkedIn account gets a notification that a distant acquaintance (who, in LinkedIn-land is nonetheless called a “connection”) has endorsed him for an area of law in which he has no actual experience, then has that attorney necessarily done anything wrong? In other words, by doing nothing or failing to act on another LinkedIn user’s conduct, has the lawyer nevertheless acted falsely, misleadingly, or deceptively, and therefore, unethically?

For quite some time, there has been no definitive answer; however, within the last year, there have been two ethics guidelines—specifically, the New York State Bar Association’s “Social Media Ethics Guidelines” and the Pennsylvania Bar Association’s advisory opinion entitled, “Ethical Obligations for Attorneys Using Social Media”— that have touched on this ethical dilemma and proposed solutions. Both guidelines discussed the concept of “control” and explained that where an attorney has control over content on a social media website, he has a duty to monitor his account, verify the accuracy of any information posted, and remove or correct any inaccurate endorsements.

But on March 10, 2015, in Formal Opinion 748, the Professional Ethics Committee of the New York County Lawyers Association tackled the issue head-on, leaving little room for continued confusion. Moreover, the Committee deemed LinkedIn to be subject to the attorney advertising rules unless an attorney is only listing her education and work background.

The Committee came to the following stern conclusion about LinkedIn: attorneys are responsible for periodically monitoring the content of their LinkedIn pages at reasonable intervals and endorsements must be truthful, not misleading, and based on actual knowledge.

The opinion specifically addresses the question of what an attorney is to do when he receives an inaccurate endorsement or recommendation from a distant acquaintance—he is to remove the endorsement from his profile within a reasonable period of time once he becomes aware of the inaccurate posting. Where the variables are slightly different, such that it is instead a colleague or former client sending an accurate endorsement of the lawyer’s actual experience or area of practice, the endorsement is not considered misleading so it is therefore ethically permissible as long as it is otherwise in compliance with the advertising rules, which may require disclaimer language.

To read the opinion click here.

Breaking News: Florida Joins the Conversation on Advising Clients to “Clean Up” Social Media

The Florida Bar’s Professional Ethics Committee has just issued Proposed Advisory Opinion 14-1, which discusses the ethical obligations that an attorney has when advising a client to “clean up” the client’s social media pages before litigation is filed. Although there is case law that already addresses the issues of discovery and spoliation as they pertain to social media, the committee distinguished that these cases have only dealt with the issues of discovery and spoliation after litigation had commenced. Here, the committee is tackling the question of what an attorney may ethically advise in the pre-litigation stage.

The committee announced its agreement with the New York County Lawyers Association’s NYCLA Ethics Opinion 745 (2013), which stated that a lawyer may advise a client to use the highest level of privacy setting on the client’s social media pages so that they are not publicly accessible. The committee also agreed that a lawyer may advise a client to remove information from a social media page, regardless of its relevance to a reasonably foreseeable proceeding, so long as: (1) the removal does not violate any substantive law regarding preservation and/or spoliation of evidence; and (2) an appropriate record of the social media information is preserved if the information is known by the lawyer or reasonably should be known by the lawyer to be relevant to the reasonably foreseeable proceeding.

Finally, the committee turned its attention to the Florida Rules of Professional Conduct that are implicated on this issue. It pointed out that the general obligation of competence under Rule 4-1.1 may require an attorney “to advise the client regarding removal of relevant information from the client’s social media pages, including whether removal would violate any legal duties regarding the preservation of evidence, regardless of the privacy settings” (Emphasis Added). And it found that if a client asks an attorney about removing information from his or her social media pages, the attorney must adhere to Rule 4-3.4(a), which states that a lawyer must not “unlawfully obstruct another party’s access to evidence . . . that a lawyer knows or reasonably should know is relevant to a pending or a reasonably foreseeable proceeding,” and that determining what information is relevant is a factual question to be decided on a case-by-case basis.