Dear Fellow Members:
Below you will find a link to an online copy of the Maryland Rules of Professional Conduct. We have provided this link in hopes of making your search for answers to your legal ethics questions easier. As always, if you need additional guidance, please do not hesitate to call the Legal Ethics Committee hotline at the number listed in the current issue of your bar newsletter.
MD Rules of Professional Conduct
Legal Ethics Hotline Volunteers
An Evolving Intersection: Legal Ethics and Social Media
On many social media platforms, such as LinkedIn, Avvo, Twitter, Google+, Martindale Hubble, and Facebook, opportunities exist for colleagues as well as clients to recommend and/or endorse an attorney. Some of these “recommendations” take the form of written descriptions of the attorney by colleagues/clients. Others are simply accomplished by a computer click, such as a “Star” rating on Facebook or a “Skills & Endorsements” notation on LinkedIn. While these social media recommendations are labeled differently by the various platforms, states’ rules of professional conduct likely apply to all such recommendations as advertisements. See Model Rules / Maryland Lawyers Rules of Professional Conduct (MLRPC) 7.1
Even though recommendations are generally provided by third parties and not by attorneys , most opinions agree that if an attorney has “claimed” or used a profile on a social media platform, then the attorney has the ethical responsibility to review the platform for any ethical violations. See Model / MLRPC 7.1 and 7.2. Some social media platforms, such as Avvo and Martindale Hubble, generate attorney profiles from bar association memberships without input from the profiled attorneys. Attorneys can “claim” these profiles by requesting access to or by updating profiles.
South Carolina Ethics Advisory Opinion 09-10 concludes that by “claiming” a social media profile, an attorney becomes responsible for all the content of the profile including any third-party recommendations. Thus, when a profile is “claimed,” attorneys are required to pay attention to whether their use of a social media platform complies with applicable state’s rules of professional conduct.
The very description or heading of a recommendation category can itself constitute a violation of the rules of professional conduct. For example, by default, some social media platforms will categorize an attorney as an “expert” or a “specialist.” Under many states’ rules of professional conduct, attorneys cannot hold themselves out to be “specialists” or “experts” in the law, unless the attorney is certified by an accrediting body approved by the American Bar Association and certain disclosures are made. See Model / MLRPC 7.4.
New York State Ethics Opinion 972 concludes that an attorney may not list his or her practice areas under the heading “specialties” on a social media platform unless the attorney is a properly-certified specialist. Social media platforms frequently change their recommendation titles; thus, an attorney must regularly review his or her profile to be certain that the titles of the headings are not improperly adjusted so as to create an ethical violation.
New York County Lawyers Association Professional Ethics Committee Opinion 748 concludes that LinkedIn platform’s “Skills & Endorsements” category does not constitute a specialist violation under Rule 7.4, and further, “[i]f an attorney believes an endorsement or recommendation is not accurate, the attorney should exclude it from his or her profile.”
The method that social media recommendations are obtained can also give rise to a violation of a state’s rules of professional conduct. While all ethics opinions acknowledge that an attorney cannot pay for a recommendation or enter into a reciprocal recommendation (see Model / MLRPC 7.2), ethics opinions have been divided on the issue of recommendation solicitation.
For example, Andrew Perlman (Chief Reporter for the ABA Commission on Ethics 20/20) has observed that New York would permit an attorney to make a simple request for a recommendation from a former client. Similarly, Michael P. Downey (former Chair of the Illinois State Bar Association Standing Committee on Professional Conduct) has commented that LinkedIn endorsements are ethically proper, provided the recommendation contains no false statements and is not given on a quid pro quo basis.
South Carolina Ethics Advisory Opinion 09-10, however, creates a fine line concerning solicitation of recommendations. The Opinion provides, on one hand, that for attorneys’ websites, an attorney may not solicit or allow any recommendations whatsoever. Notwithstanding this prohibition as to attorneys’ websites, the Opinion provides that, for social media pages, an attorney may solicit or allow recommendations provided any such recommendation is presented in a way that would not be misleading or likely to create unjustified expectations.
Finally, in contrast to the hazard warnings from ethics committees and attorneys, Joshua M. King (General Counsel for Avvo) takes a more liberal view. Mr. King asserts, through social media posts, that attorneys cannot be liable for recommendations by third parties because any rules of professional conduct would be preempted by Section 230 of the Communications Decency Act (47 U.S.C. § 230).
So, the lesson learned from these opinions is that lawyers should remain vigilant regarding, not only their own websites, but also to social media sites in which they affirmatively participate as this area of law continues to evolve from state to state.
Adam L. Van Grack, Committee Member
Daniel L. Shea, Co-Chair
Samuel M. Shapiro, Co-Chair
Samuel M. Shapiro
Daniel L. Shea
May 21, 2015
June 18, 2015
*to be held in the lower level conference room of the Bar Association building
Meetings will be held at 4:30 p.m. on the 3rd Thursday of the month in the upstairs conference room of the Bar Association building, unless otherwise noted.