By Mitchell T. Borkowsky, Esq.
Reprinted with Permission by the Nassau County Bar Association.
Engaging on social media platforms such as Facebook and LinkedIn remains an evolving area rife with ethical implications for attorneys. The question often arises as to whether your profile and content on such social media platforms constitute attorney advertising under the New York Rules of Professional Conduct (“RPC”). [1] If social media profiles and content are deemed to be advertising, then it follows that they must comply with Rule 7.1, which sets forth a laundry list of advertising “dos and don’ts” too voluminous to catalogue here. [2]
Among other things, Rule 7.1 dictates the kind of content that can be included in an advertisement, requires the disclaimer “Attorney Advertising” to be conspicuously displayed in advertisements (unless the communication is one of a few delineated exceptions) [3] and sets forth requirements for retention of copies of advertisements. [4]
Most importantly, however, is the first tenet of the advertising rules, which proscribes the use or dissemination of “false, deceptive or misleading” statements or claims. [5] A statement or claim can be false or misleading if it contains a material misrepresentation of fact or law or “omits a fact necessary to make the statement considered as a whole not materially misleading.” [6] This prohibition against dishonest conduct is not unique to the advertising rules and permeates the entirety of the Rules of Professional Conduct.[7] The manners in which attorneys can unwittingly run afoul of this precept in their advertising are limitless, and often comical. By way of example, a firm in another state was privately sanctioned for claiming in an advertisement that it had over 40 years’ experience helping clients when none of the attorneys in the firm had even been admitted to practice anywhere near that length of time. For purposes of this article, it is assumed that any contemplated communications are not false, deceptive or misleading.
Inconsistent Perspectives
The debate over whether social media profiles and content constitute attorney advertising has not been definitively resolved.
In 2015, the Professional Ethics Committees of the New York County Lawyer’s Association (“NYCLA”) and the Association of the Bar of the City of New York (“NYC Bar”) grappled with the issue and came up with two opinions that were not consistent. [8] In its Ethics Opinion 748, the NYCLA Committee concluded that “A LinkedIn profile that contains only one’s education and current and past employment does not constitute Attorney Advertising.” However, the Committee stated, “If an attorney chooses to include information such as practice areas, skills, endorsements, or recommendations, the attorney must treat his or her LinkedIn profile as attorney advertising and include appropriate disclaimers pursuant to Rule 7.1.”
The NYC Bar Committee, however, in its Formal Ethics Opinion 2015-7, felt that in light of the myriad reasons attorneys engage in social media activities, more was needed before a LinkedIn profile should be deemed an advertisement. According to that Committee, the mere listing of skills, practice areas, and even endorsements in your LinkedIn profile does not, in and of itself, transform a social media profile into an advertisement under Rule 7.1. Instead, the NYC Bar’s Committee opined that determining whether a social media profile constituted attorney advertising required an analysis of the elements of the RPC’s definition of “advertisement.”
The RPC defines an advertisement as “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. It does not include communications to existing clients or other lawyers.” [9]
As such, the NYC Bar Committee opined that a social media profile does not constitute attorney advertising unless it meets five criteria: (1) It is a communication made by or on behalf of the lawyer; (2) the primary purpose of which 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.
Profiles and Content
In the author’s view, the debate is somewhat academic. As a practical matter, it is simply better to be safe than sorry. While some lawyers may create profiles on LinkedIn solely to seek employment or network with others having similar interests, it is not a stretch to imagine that the overwhelming majority of attorneys and law firms view their LinkedIn activities as a means, first and foremost, of marketing themselves and their services. Most LinkedIn profiles are static communications which, in almost every instance, contain pedigree information and areas of practice. To that end, it does not take much effort to ensure that the label “Attorney Advertising,” or a phrase conspicuously containing those required words [10], is included at the end of the biographical information.
Determining whether to include the label “Attorney Advertising” when posting original material or sharing content is a bit more difficult. Whether a particular posting constitutes an advertisement or not depends, in large part, on the nature of the content and your motivation for publishing. Posting about a life event or fundraiser or sharing an interesting article or a colleague’s post about an appearance on television do not necessarily fall within the definition of advertising. Likewise, sharing general information about an issue or area of law may or may not fall within the definition. However, announcing a successful outcome obtained by your firm in a civil action, or promoting your services in a particular practice area and providing a link to your website, would likely be deemed an advertisement giving rise to the obligation to comply with Rule 7.1. Therefore, in each and every instance when posting on social media, attorneys should pause and ask themselves whether the required labeling and other requirements of Rule 7.1 apply.
Indeed, attorneys should be vigilant in all social media endeavors. The informality and spontaneity of social media platforms can easily cause us to drop our guard. Always remember that we do not get a “pass” on compliance with the rules governing attorney conduct simply because it’s “social” media. In some respects, we may even have to be more careful. Not only do we need to concern ourselves with the truth and veracity of our own comments, but we should also periodically review what other people have said about us or our posts to ensure that misleading or false statements (even comments) do not remain. If there are endorsements or testimonials that are false or misleading, we should remove or have them modified.
Similarly, we must make reasonable efforts to avoid the inadvertent disclosure of confidential information about clients, whether current, former, or prospective. This is especially true when posting information about successful results or blogging about cases and issues. Be aware that some social media platforms import contacts from email servers, providing others with access to our list of contacts. The mere disclosure of a person on the contact list could be construed as a breach of confidence.
As in everything we attorneys do, know the playing field. While New York State has not yet adopted a specific rule establishing a duty of technological competence, a majority of states have such a rule. In New York, Rule 1.1, entitled “Competence,” provides that “A lawyer should provide competent representation to clients. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” [11]
Comment 8 to RPC, rule 1.1 states:
“a lawyer should … (ii) keep abreast of the benefits and risks associated with technology the lawyer uses to provide services to clients or to store or transmit confidential information…”
This has been construed to mean that attorneys must understand the functionality and privacy settings of any social media service they wish to utilize... and be aware of any changes in platforms’ settings or policies. [12]
As always, err on the side of caution. While the rules may seem impractical and may not result in serious discipline if examined by a grievance committee, the ease and benefits of compliance far outweigh the risks associated with non-compliance.
Mitchell T. Borkowsky provides representation to lawyers being investigated or prosecuted by the state grievance committees for alleged ethical or professional misconduct. He is the former Chief Counsel to the New York State Grievance Committee for the Tenth Judicial District of the Supreme Court, Appellate Division, Second Department and a member of the Nassau (Vice-Chair) and Suffolk County Bar Associations’ Ethics Committees, and the New York State Bar Association’s Committee on Professional Ethics and Task Force on Attorney Well-Being: Public Trust and Ethics Working Group. Mr. Borkowsky can be reached at Mitch@myethicslawyer.com
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[1] 22 N.Y.C.R.R., part 1200
[2] 22 N.Y.C.R.R., part 1200, rule 7.1
[3] 22 N.Y.C.R.R., part 1200, rule 7.1(f) excludes advertising appearing on radio, television, or billboards from the requirement that they be labeled “Attorney Advertisement.”
[4] 22 N.Y.C.R.R., part 1200, rule 7.1(k) requires advertisements contained in computer-accessed communications to be retained for a period of not less than one year.
[5] 22 N.Y.C.R.R., part 1200, rule 7.1(a)(1)
[6] 22 N.Y.C.R.R., part 1200, rule 7.1, Cmnt. 3
[7] See, 22 N.Y.C.R.R., part 1200, rules 1.2, 3.1, 3.3, 3.4, 4.1, 8.1, 8.2, 8.3, 8.4
[8] New York County Lawyer’s Association Ethics Op. 748 (2015) and Association of the Bar of the City of New York Ethics Op. 2015-7
[9] 22 N.Y.C.R.R., part 1200, rule 1.0(a)
[10] Many lawyers and firms opt to state something akin to “This profile may be considered Attorney Advertising in some jurisdictions.”
[11] 22 N.Y.C.R.R., part 1200, rule 1.1(a)
[12] Association of the Bar of the City of New York Ethics Op. 2012-2
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