A few weeks ago I received an e-mail notice from LinkedIn saying that a friend had endorsed me in the field of Licensing. And the next day I got an endorsement as a Litigator.
Now, the closest I’ve ever been to a license is the back of my car. And I last litigated a case in 1998. (Did well, too, but…) However, this was a friend from my church group, a good man, and I am sure he thought he was doing a good deed, boosting me up, and doing a mitzvah according to his best lights. But at the ABA Annual Meeting a few weeks ago, I learned that he may have rendered me unethical!
Model Rule 7.1 provides that “A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services.” If we agree not to split hairs over whether a LinkedIn page that I created and that I maintain and whose content I control is my communication, then my LinkedIn page falsely conveys that I am a whiz-bang IP attorney. And the Florida Supreme Court recently opined that a lawyer must take down third-party comments that speak in terms of endorsements or that attest to skills.
Model Rule 7.3, regulating solicitation, notes in the Comment that “a lawyer’s communication typically does not constitute a solicitation if it is directed to the general public, such as through a billboard, an Internet banner advertisement, a website or a television commercial, or if it is in response to a request for information or is automatically generated in response to Internet searches. ” So maybe my website is not a communication (huh?) and maybe neither is my LinkedIn page. But is this blog?
I mean, golly, I suppose I hope so….
The panelists at the ABA Meeting drew our attention to some precautionary judicial and ethical opinions.
- In Florida, for example, an attorney was disciplined for posting on her blog allegations that a judge she had appeared before was an “evil unfair witch,” “seemingly mentally ill,” and “clearly unfit for her position,” in violation of Florida Rule 4-8.2(a), prohibiting false statements about the qualifications of a judge.
- In Georgia, an attorney posted on the internet personal, confidential and identifiable information about a client in retaliation for a negative review that the client had posted on a consumer website, and was disciplined by the state Supreme Court.
- A Wisconsin attorney published a blog with information relating to her clients and derogatory comments about judges, and was suspended for 60 days. (A mitigating circumstance was that the client, in open court during trial, punched the attorney in the face, resulting in a concussion and other injuries.)
- Earlier this year, a divided Supreme Court of Virginia required that an attorney publish certain disclaimers to his blog, which contained “posts discussing a myriad of legal issues and cases, although the overwhelming majority are posts about cases in which [the attorney] obtained favorable results for his clients.”
The bottom line advice of the panel seemed to be: Check to see whether your jurisdiction prohibits or regulates testimonials. If it does, vacuum your LinkedIn site.
And if you maintain a blog, be honest and be nice. Now, is that so hard?
