The Ethics of Endorsing

Might your LinkedIn endorsements - those you get and give - run afoul of ethics rules? There's reason to be concerned.

As this month's cover story illustrates, social media continues to be embraced by lawyers. According to the ABA's 2014 Legal Technology Survey Report, 56 percent of law firms were using LinkedIn when the survey was done, 34 percent were using Facebook, and 26 percent of solo practitioners were using Facebook for professional reasons.

Social media can be a powerful platform for marketing and other legitimate lawyerly pursuits. But it also presents ethical pitfalls.

Thus far, no Illinois ethics opinion addresses social media per se. A few cases, however, stem from social media use. In In re Morask, a Cook County State's Attorney was disciplined for making false statements about her record on a blog in an attempt to boost her public image (M.R. 26061, 2013 WL 5880189 (Ill. Sept. 25, 2013)) and in In re Peshek a lawyer was disciplined for revealing confidential client information on a blog (M.R. 23794 (Ill. May 18, 2010)).

There's no question that the various social media platforms implicate a number of Illinois Rules of Professional Conduct ("RPC"). Let's look at a few risky areas.

LinkedIn 'skills' and 'endorsements'

The ethical challenges posed by social media are influenced by the special features each medium offers. One of the more popular can be found on LinkedIn, which allows users to endorse others in various "skills."

Unfortunately, LinkedIn does not define the skills it enables users to list and endorse, so the interpretation is left to the observer. What does it really mean to list "negotiation" or "ethics" as a skill on your LinkedIn profile? What one lawyer considers adequate experience, another may not.

And what about endorsements you receive from other connections? If someone endorses you for litigation and you don't have any litigation experience - and you let the endorsement stand - you may run afoul of RPC 7.1, which prohibits a lawyer from making false or misleading communications about his or her services.

Listing skills on your profile for which you don't have experience can also violate RPC 8.4, which states that a lawyer cannot engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. On the other hand, endorsing a lawyer for a skill when you don't have knowledge of his or her ability could also trigger RPC 8.4. According to the FTC Guides Concerning the Use of Endorsements and Testimonials in Advertising, "endorsements must reflect the honest opinions, findings, beliefs, or experience of the endorser." 16 CFR § 255.1. The best practice is to only endorse individuals for skills you actually know about.

Another concern about LinkedIn skills is whether listing them can be construed as a claim to be a specialist or expert in an area of law. RPC 7.4(c) does not allow lawyers to use terms like "certified," "specialist," or "expert" to describe their qualifications. Consider what consumers might think if they viewed your page and saw that you had been endorsed for the skill of civil law. They might think you are holding yourself out as an expert in civil matters, even though you might mean something else.

Obviously many lawyers list these skills, and whether and how you do it is up to you. But beware of the ethical implications.

Advertising, attorney-client relationships

Are you advertising through social media? Lawyers must also consider whether their social media presence rises to the level of lawyer advertising. RPC 7.2 allows a lawyer to advertise through electronic communication, and Comment [3] specifically mentions the Internet as a venue.

If a social profile contains only biographical information, it may not constitute advertising. But any mention of legal services, fees, foreign language ability, references, or client names probably does rise to the level of advertising.

Keep in mind that any communication about your services cannot be false or misleading under RPC 7.1. This includes client testimony, which must be scrutinized for false or misleading content if you allow it on your page.

Have you created an attorney-client relationship? The ability to go beyond one-way communication and engage others is a major appeal of social media. Be mindful, however, that engaging someone online might inadvertently create an attorney-client relationship. Answering questions, replying to posts, and responding to tweets could trigger RPC 1.18 ("A person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client").

As we note elsewhere is this issue, comment [8] to IRPC 1.1 was recently updated to require lawyers to keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology. This is even more motivation for you to review your social media pages and become more familiar with various types of social media. If you do use social media, be sure to continually review what you post - and what others post to your sites - and keep the relevant ethics rules in mind.

BaIley Cunningham is assistant counsel for the ISBA.

bcunningham@isba.org