Francesca Giannoni-Crystal, When the devil is in the details … LinkedIn endorsements

Let me say that something from the start: a LinkedIn profile of an attorney IS attorney advertisement and I am surprised to see that many attorneys do not treat it as such.   Because, as the NY Rules of Professional Conduct express the issue, “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.” Rule 1.0(a).  Therefore you have to comply with Model Rule 7.1, in the version that your jurisdiction has passed. Let me also say that LinkedIn does not make attorneys’ life easy under this perspective. For example the “skills and expertise” section might be a problem trigger because many jurisdictions do not allow attorneys to qualify themselves as “expert” unless they obtain a certain qualification through the bar (and some jurisdictions do not allow this. Period). Well, the insertion of specific skills under LinkedIn “skills and expertise” might be in violation of this requirement unless you insert a specific disclaimer to this effect. I haven’t seen many of these disclaimers around in attorneys’ LinkedIn profile. Another example: certain jurisdictions (New York for example) require attorneys to clearly mark their advertisements as “ATTORNEY ADVERTISING”. An attorney’s LinkedIn profile is often attorney’s advertisement — unless an attorney uses it for really personal reasons or for another activity of his: the Comments to the New York Rules, for example, say that “non- commercial communications motivated by a not-for-profit organization’s interest in political expression and association are generally not considered advertising.”) Again, LinkedIn is not very flexible to this requirement. You can use the background space to insert “THIS IS ATTORNEY ADVERTISING IN CERTAIN JURISDICTIONS.” I have done it and I recommend it but certainly “Background” would not be the ideal place to insert the language.

But let me arrive at the endorsement issue. Model Rule 7.1 does not provide details about endorsements/recommendations. So if your jurisdiction has enacted nothing more than the current version of 7.1, you can maintain endorsements (without hiding them, as it is possible in the LinkedIn world) if by doing that you do not make “a false or misleading communication about the lawyer or the lawyer’s services”. For example, if someone endorses you for litigation skills and you have never entered a courtroom … well, this would be certainly false and misleading. Even if, instead, the endorsement is truthful, because Comment [3] to Rule 7.1 qualifies as misleading a lawyer’s achievement “if presented so as to lead a reasonable person to form an unjustified expectation that the same results could be obtained for other clients”, then I would advise to include a general disclaimer in your profile that prior results do not guarantee a similar outcome.

There are jurisdictions, however, that have a much more detailed Rule 7.1, for example South Carolina and New York.  In South Carolina, Rule 7.1(d) specifically deals with testimonials. The Rule provides that you must: (1) identify the fact that it is a testimonial or endorsement (and obviously no problem here because the LinkedIn endorsements are clearly labeled); (2) disclose if payment has been made (and no problem under this aspect unless a lawyer pays for being endorsed);(3) indicate if it is not made by an actual client, without identifying that fact (and this is tricky because LinkedIn does not allow you to clarify it. I think, however, that the issue can be solved with a general statement insert in your profile); (4) clearly and conspicuously state that any result the endorsed lawyer or law firm may achieve on behalf of one client in one matter does not necessarily indicate similar results can be obtained for other clients (and this again can be solved with a general warning).

In New York Rule 7.1 on advertisement is also quite specific. Per Rule 7.1(c)(1) “An advertisement shall not: (1) include a paid endorsement of, or testimonial about, a lawyer or law firm without disclosing that the person is being compensated therefore.” Talking about LinkedIn endorsements, this is – like in South Carolina – a non-problem because generally an attorney does not pay to be endorsed.  However, the situation gets worse when you keep reading the Rule 7.1. Per Rule 7.1(d): even if an advertisement may contain “testimonials or endorsements of clients, and of former clients;” (7.1(d) (3)), Rule 7.1(e) says that the information pursuant to 7.1(d) (therefore also the endorsement) must be “factually supported by the lawyer or law firm as of the date on which the advertisement is published or disseminated” (7.1(e)(2)) and “must be it is accompanied by the following disclaimer: ‘Prior results do not guarantee a similar outcome’” (7.1(e)(3). In addition Rule 7.1(4)(e) requires the informed consent of the client be given in writing if “testimonial or endorsement from a client with respect to a matter still pending” Moreover, per Rule 7.1(k) “[a]ll advertisements shall be pre-approved by the lawyer or law firm, and a copy shall be retained for a period of not less than three years following its initial dissemination. Any advertisement contained in a computer-accessed communication shall be retained for a period of not less than one year. A copy of the contents of any web site covered by this Rule shall be preserved upon the initial publication of the web site, any major web site redesign, or a meaningful and extensive content change, but in no event less frequently than once every 90 days.” There is enough here to create headache to lawyers receiving LinkedIn endorsements by “clients or former clients.” Endorsements by someone different from a client or former client, however, does not appear to be regulated by Rule 7.1(e) and are less than a problem, because technically they are not “ information” pursuant to Rule 7.1(d) (Rule 7.1(d) only talks about clients and former clients). Endorsements by clients or former clients (i) must be “factually supported by the lawyer or law firm as of the date on which the advertisement is published or disseminated” (7.1(e)(2)). This is difficult in the LinkedIn world because when a client or former client for example, endorses you for your “employment law” skill, how can you factually support that? (ii) “must be it is accompanied by the following disclaimer: “Prior results do not guarantee a similar outcome.” 7.1(e)(3). This is also hard because in LinkedIn there is really no possibility under “skill and expertise” to insert this language, all the less it is possible to insert this language in the endorsement section. This problem might be solved by putting this disclaimer in the Background section of LinkedIn, which is far from being the perfect place but at least you have it; (iii) if the matter is pending, the client endorsing you, must give an informed consent in writing. Rule 7.1(4)(e). This seems a nonsense in case your clients endorse you on their own initiative … still the Rule does not make exception, so as soon as you see the endorsement of a current client, you’d better rush to get his or her informed consent in writing.

A final consideration, which this time covers both endorsement by clients/prospective clients and others: per Rule 7.1(k) attorneys have the duty to pre-approve their advertisement and to keep evidence of it for three years and in case of websites, they should keep screenshot taken, when “meaningful and extensive content change” is done and at least every 90 days. The pre-approval of the endorsements is simply impossible for LinkedIn endorsements because people, without you having to do anything, can endorse you and their endorsement will appear in your profile without you to know do anything (different if someone tries to endorse you for a skill you have not indicated yourself, in which case, you will have to approve it.) Obviously you can “hide” the endorsement in your LinkedIn account but anyway the endorsement has been disseminated for some time, without you to pre-approve it. And what’s about your conservation duty, which actually affects your whole LinkedIn account not only the skills section? Should a lawyer take screenshots of his or her LinkedIn account? Yes, it might be prudent to do so, at least every 90 days. But – this is the question specific to LinkedIn endorsements – is a LinkedIn endorsement a “meaningful … content change” which should force you to make a new screenshot before the 90 days? It depends on the endorsement, I think. Let’s imagine your list “administrative law/regulatory law” among your skills and you receive an endorsement from, let’s say, Ms. Margaret Hamburg, MD, the commissioner of FDA, i.e. the top of the top in the agency. Well, the change in the content is pretty “meaningful” and could require a new screen shot.

In conclusion, under New York rules, lawyers have continuous duty to monitor their endorsements. The surprising part of all this, is that very few LinkedIn users seem to have realized that. Unless they simply do not see LinkedIn as advertising, which is probably wrong 99.9% of the times.


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