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Ethics Corner: Avoiding Ethical Pitfalls in Using Social Media

Attorneys are making professional use of social media at an increasing rate, but many are unaware of the potential ethical pitfalls that might arise from its use. This is the first article in a series, and it will discuss some of the most relevant uses of social media that implicate ethics rules, with a focus on LinkedIn, Facebook, and Twitter as those platforms are the ones most commonly used in the legal profession.

This article will logically begin with posting an attorney’s professional social media profile. It seems like an easy enough task, so what could possibly go wrong? It goes without saying that the information posted cannot run afoul of MRPC 7.1 which admonishes a lawyer not to make a false or misleading statement or material misrepresentation about the lawyer, the lawyer’s services, or the lawyer’s qualifications.

Another “hot” topic arising in the posting of profiles centers on the issue of when an attorney can state that he or she is a specialist in a particular area of the law. Setting aside specific information on patent and admiralty practice, MRPC 7.4 advises that an attorney cannot state or imply that he or she is certified as a specialist in a particular area of law unless 1) certified as a specialist by an organization approved by an appropriate state authority or accredited by the American Bar Association, and 2) the name of the certifying organization is clearly identified in the posting. So, for example, even though antitrust cases account for more than one-half of your caseload, you cannot describe yourself as “specializing in antitrust law” on your profile unless you meet the aforementioned criteria. Note that MRPC 7.4 is very broad and covers all communications which would include social media profiles.

Some state bar associations have added additional requirements to MRPC 7.4. For example, Mississippi Rule 7.4(a) requires that the lawyer claiming specialization have written information available on the lawyer’s experience, expertise, background, and training in the area of specialization. Rhode Island Rule 7.4(d)(3) requires the lawyer claiming specialization to include a disclaimer stating that the Rhode Island Supreme Court “does not license or certify any lawyer as an expert or specialist in any particular field of practice.”

As to specific social media platforms, be aware that LinkedIn has eliminated the “Specialties” default section on individual profiles which used to appear after the Summary section. If you are a new LinkedIn user, there is no problem as the section is no longer available, but if you have completed the “Specialties” section in the past, you should consider eliminating it unless you meet the criteria in MRPC 7.4. Since LinkedIn made this change in the latter part of 2013, it may have been in response to New York State Bar Opinion 972 dated June 26, 2013, which specifically stated that a lawyer may not list services under the heading of “Specialties” on a social media site unless certified as a specialist by an appropriate organization or governmental authority.

Interestingly, the New York Bar opinion specifically declined to address whether the lawyer could, consistent with MRPC 7.4, list practice areas under another LinkedIn section called “Skills and Expertise.” The Philadelphia Bar Association took on the issue in Opinion 2012-8, finding that simply listing the lawyer’s areas of practice in this section would be the same as listing the areas of practice on a lawyer’s website; however, any additional representations regarding the lawyer’s level of proficiency would be a violation of MRPC 7.4. Nevertheless, in 2014, LinkedIn changed the title of the section to “Skills and Endorsements,” possibly resolving this issue, but still potentially problematic under MRPC 7.1, a discussion for a future ethics and social media article.

As with any discussion of legal ethics, it is always advisable to consult the appropriate ethics opinion in your jurisdiction. And be sure to look for the October issue of the NAGTRI Journal for another discussion of ethical issues arising in an attorney’s use of social media.

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Tim Fox, Montana Attorney General

Tim Fox, the Montana attorney general, has worked in public service since 1990.