Article
Social Media and the New York Rules of Professional Conduct: Is LinkedIn Attorney Advertising?
ABA/BNA Lawyers' Manual on Professional Conduct
(2017)
Abstract
Lawyers who maintain active social media presences should be aware of recent opinions by ethics committees in New York discussing the extent to which lawyers’ postings on the social media page LinkedIn constitute attorney advertising in New York. These committees have addressed the extent to which lawyers’ social media postings subject them to regulation for attorney advertising within the meaning of the New York Rules of Professional Conduct. For example, is the mere listing of biographical information on LinkedIn sufficient to constitute attorney advertising, such that the copy must be preserved for a period of one year and designated as such? Or, as the New York City Bar Association posits, is it more appropriate to look to the primary purpose of the posting to determine whether the lawyer’s subjective intent was to garner the retention of the lawyer or law firm? This article attempts to reconcile the views and perspectives of the two ethics committees in order to provide guidance to practicing lawyers in New York.
The City Bar and NYCLA agree on the most significant considerations relating to attorney advertising on social media. Both bar associations are unequivocal in stating that not all communications on LinkedIn are considered advertising. For example, routine biographical and education information, along with basic marketing and branding of the law firm, would generally not be considered attorney advertising, and therefore not subject to labeling as such or the one-year retention requirements set forth in Rule 7.1. On the other hand, a detailed description of a lawyer’s legal skills with intent to garner retention for pecuniary gain would be likely to constitute attorney advertising, and would require the lawyer to comply with all of the Attorney Advertising rules, including but not limited to labeling the content as “Attorney Advertising” and retaining a copy for the relevant period. Attorneys must also monitor social media content posted by third parties on the attorney's online profile to ensure that the statements are truthful and not misleading.
Keywords
- LinkedIn,
- Social media,
- legal ethics,
- attorney advertising
Disciplines
Publication Date
Spring April 19, 2017
Citation Information
Barry R. Temkin and James Q. Walker. "Social Media and the New York Rules of Professional Conduct: Is LinkedIn Attorney Advertising?" ABA/BNA Lawyers' Manual on Professional Conduct Vol. 33 Iss. 209 (2017) Available at: http://works.bepress.com/barry_temkin/48/