By Michael Starkey, French Lyon Tang
If you are an active LinkedIn user, there’s a good chance that you have received an endorsement by someone without personal knowledge of whether you have the claimed skill. Well-meaning perhaps, but such endorsements of attorneys are potentially misleading to current, former or potential clients and likely violate California attorney ethics rules. However, there’s no authority directly on point and the rules do not reflect the rapid growth of social media communications.
California attorney advertising is primarily governed by Rule of Professional Conduct 1-400 and Business and Professions Code sections 6157–6159.2.
A “communication” is regulated by Rule 1-400 if it (1) is made by or on behalf of a California attorney; (2) concerns the attorney’s availability for professional employment; and (3) is directed to a former, present, or prospective client.” (see California State Bar Formal Opinion No. 2012-186, p. 3.) Your LinkedIn endorsements are likely covered:
1. Because LinkedIn users have control over the content of their profiles, the content of your profile, including endorsements, is “on or behalf of the attorney.”
2. Because the primary purpose of LinkedIn is professional networking, your endorsements (for legal skills) are very likely to be considered to concern your availability for professional employment.
3. Is the content directed to a client? If your LinkedIn endorsements can be viewed by either (1) a substantial portion of the general public (depends on your settings); or (2) any former, present, or prospective clients, the answer is yes. (Rule 1-400(A); Cal. State Bar Formal Opn. Nos. 2001-155 and 2012-186.)
Your LinkedIn endorsements are likely “communications” governed by Rule 1-400.
Rule 1-400 prohibits communications that are false, deceptive, or tend to confuse, deceive, or mislead the public. (Rule 1-400(D)(1–3).) Business and Professions Codes sections 6157–6159.2, which may also apply, prohibit false, misleading or deceptive advertising. (§6158 (“the message as a whole must be factually substantiated… …capable of verification by a credible source.”). Additionally, an endorsement of an attorney presumptively violates Rule 1-400, unless it contains an express disclaimer, but such a disclaimer does not excuse material omissions. (Rule 1-400, Standard (2).)
Accordingly, attorneys displaying LinkedIn endorsements of their professional skills, not based on personal knowledge, are likely in violation of the California rules governing attorney advertising.
Further beware, attorney advertising restrictions are not relaxed in a social media setting. (Cal. State Bar Formal Opn. No. 2012-186) Even well founded and truthful endorsements or statements of experience can violate attorney advertising rules (e.g., requirement of “Advertisement,” “Newsletter,” or similar words on first page) and attorneys are required to retain a true and correct copy of any “communication” for two years. (See, e.g., id. at p.3–4; Rule 1-400(F), Standards 1, 5, 7–9, 12, & 15.)
For an analysis of these issues under New York’s rules, see New York County Lawyers Association, Professional Ethics Committee, Formal Opinion 748 (March 10, 2015) (LinkedIn “endorsements and recommendations must be truthful, not misleading, and based on actual knowledge…”).
Mike Starkey is a senior associate at French Lyon Tang. He is a commercial litigator and represents law firms in fee disputes. He is a member of BASF’s Legal Ethics Committee.