LinkedIn Lawyers – Mind Your Language!

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UPDATE: In December, 2013, this advisory opinion was revoked by the Florida Bar. 

Per the Florida Bar’s September 11, 2013 advisory advertising opinion, a lawyer cannot list areas of practice under “Skills & Expertise” on LinkedIn without being board-certified in those areas.

Due to a quirk of how LinkedIn operates, most Florida lawyers are probably (albeit inadvertently) out of compliance with Florida ethics rules.  For non-Florida lawyers, New York has reached a similar conclusion- and every lawyer on LinkedIn should pay attention to this issue.

Allow us to explain, but also check and correct your profile as necessary (for technical help in doing so, click here).

LinkedIn is Facebook in a suit and tie.  96% of lawyers use LinkedIn.  It includes a feature called Skill Endorsements, which according to LinkedIn is:

a great way to recognize your 1st-degree connections’ skills and expertise with one click. They also let your connections validate the strengths found on your own profile. Skill endorsements are a simple and effective way of building your professional brand and engaging your network.

Last July, the Orange County Bar Association published an article that discussed, in part, LinkedIn endorsements, LinkedIn’s automatically populated “Specialties” section, and the ethical issues associated with same.  The “Specialties” section automatically populated user profiles (without notification or consent to the user) with “Specialties,” raising advertising ethics issues, and this “Specialties” feature has since been removed.  The Skill Endorsement features remain  in place of the Specialties listings.

The Skill Endorsement features includes a process where LinkedIn users can “recommend” other users for their “Skills & Expertise.”   In practice, this is a  frenzied click-fest of users “recommending” their friends and contacts in reciprocal recommendation exchanges.  This recommend-fest is egged on by automatically prompted recommendations by LinkedIn that users endorse their contacts, which are displayed when a user logs in to their LinkedIn account interface.

Once user A ascribes certain “Skills & Expertise” to user B, user B can accept or reject the “Skills & Expertise” that user A has ascribed to user B.  The problem lies in the verbiage “Skills & Expertise” where these recommended categories of expertise are plopped into a user’s profile subsequent to acceptance of a recommendation from a contact.  Unlike the former “Specialties” feature in LinkedIn, the “Skills & Expertise” listings require the affirmative consent of the LinkedIn user before they are displayed on the user’s profile.

After the July article was published, some lawyers thought that a disclaimer would be adequate to guard against any ethical issues associated with the use of the terms “Skills & Expertise,”  and there was some confusion in Florida’s legal community as to what one could or couldn’t do in regards to LinkedIn recommendations.

In August, a Florida attorney requested an advisory opinion from the Florida Bar on whether attorneys may list their areas of practice under the LinkedIn header “Skills & Expertise,” if they provided an appropriate disclaimer.  Last week, the Florida Bar responded in the negative, briefly discussing the issue and citing a New York State Bar ethics opinion reaching a similar conclusion.

Many lawyers are oblivious to the fact their LinkedIn account says “Skills & Expertise” as the automatically populated nomenclature comes about by simply clicking “accept” on click-fest endorsements raised by contacts.  Certainly there is affirmative consent to the recommendation, but the user never actually types in or labels a category as “Skills & Expertise.”

While Florida attorneys cannot list various fields of practice under Skills & Expertise on LinkedIn unless they are Board Certified, it is not entirely clear if that would include areas where the Florida Bar does not currently offer Board Certification (e.g., eDiscovery, underwater basket weaving, making hot chocolate).

Nobody wants to be a test case for disciplinary proceedings, thus best practice for Florida lawyers is to err on the side of caution and make sure their social media accounts are compliant with Florida’s new advertising rules.

For all lawyers, think before you click when it comes to social media ethics.  New York and Florida are in harmony on this issue.  Your jurisdiction could well be next.

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