8 ARIZONA ATTORNEY JUNE 2016 www.azbar.org/AZAttorney
by David D. Dodge
David D. Dodge provides consultation
to lawyers on legal ethics, professional
responsibility and standard of care
issues. He is a former Chair of the
Disciplinary Commission of the Arizona
Supreme Court, a current Co-Chair of the
State Bar Member Assistance Committee,
and practices at David D. Dodge, PLC
A new ethics
opinion is on
page 70. All
and the Rules
EYE ON ETHICS
LinkedIn and Arizona’s Lawyer Advertising Rules
prohibits “unsolicited or unauthorized advertising.”8 This was followed by Formal Opinion 2015-7 from the Committee on Professional Ethics of the Association of the Bar of
the City of New York. 9 It begins with the
assumption that an online “communication”
is not presumptively an “advertisement” and
concludes that as long as a lawyer’s LinkedIn
page is general marketing or branding—the
purpose of which is to raise awareness about
the lawyer’s services rather than retention of
the lawyer for a particular matter—it doesn’t
fall within the definition of an “
advertisement” as contemplated by the ethics rules
and is not subject to them as such.
In any case, lawyers should ensure information on their LinkedIn page, including
the “Skills and Endorsements” and “
Summary” sections, are accurate and up to date,
and are not false or misleading as defined in
Arizona’s ER 7. 1.
In a previous column, 1 we looked at the concern about
whether our current lawyer advertising rules2 are keeping up with the
Internet-based marketing options now available to lawyers.
LinkedIn is a good example of a marketing tool widely used by lawyers. According to the American Bar Association’s 2014 Legal Technology Survey Report, 3 of the lawyers and law firms that responded, 99
percent of large firms, 97 percent of mid-sized firms, 94 percent of small
firms, and 93 percent of solos had LinkedIn profiles. As you likely know,
LinkedIn is an online professional networking platform where lawyers
and others can register for a free account, upload a photograph and post
a professional profile. In this respect, the process is similar to creating
lawyer websites, determined some years ago to constitute “
communications” about a lawyer and a lawyer’s services that are subject to our ethics
rules. 4 Like a website, LinkedIn lets us write about our practice areas in
a “Summary” section, as well as using other sections such as “
Experience,” “Education,” “Honors,” and “Recommendations,” It also allows
for “Connections” with other LinkedIn users (much like Facebook) and
with people the lawyer invites to join the group. There is also an ability
to join “Groups” of subscribers with common interests. 5
It’s fair to assume that as long as we don’t convey false or misleading
communications about ourselves and our services on LinkedIn, we won’t
be in violation of ER 7. 1 (Communications Concerning a Lawyer’s Services), and as long as our page does not attempt to solicit “professional
employment from anyone known or believed likely to be in need of legal
services for a particular matter,” we will not be subject to that part of ER
7. 3 (Solicitation of Clients) that would otherwise require us to put the
words “Advertising Material” in large letters at the beginning and end of
the LinkedIn message and to for ward a copy of the page to the State Bar.
While acquiring legal business might be “a” reason for those of us who
use LinkedIn, it probably is not considered “the only” reason
for using it. It’s a networking tool, a casual informational website, and something we shouldn’t have to worry about as ER
7.2-regulated “advertising.” Right?
Not so fast. Recent dueling ethics opinions from New York
demonstrate that the country’s jurisdictions don’t sing from the
same page. In early 2015, the New York County Lawyers Association Professional Ethics Committee issued Formal Opinion
748.6 New York’s ethics rules are somewhat different from Arizona’s, although the lawyer advertising rules generally attempt
to regulate the same kind of communications. What got many
New York lawyers exercised was the committee’s conclusion
that if a lawyer on LinkedIn chooses to include information
such as practice areas, skills, endorsements and recommendations, the lawyer must treat the profile as a “communication”
and as lawyer “advertising”—which in New York requires a
disclaimer and other administrative responsibilities.
The reaction to Opinion 748 was quick and not complimentary, 7 arguing that it was deceptive to call something
“advertising” when it isn’t, and that it would put lawyers who
use LinkedIn in violation of LinkedIn’s User Agreement, which
1. Do Our Advertising Rules Need an
Upgrade? ARIZ. ATT’Y (Feb. 2016) at 8.
2. ERs 7. 1, 7. 2, 7. 3 and 7. 4, ARIZ.R.PROF.
CONDUCT; Rule 42, ARIZ.R.S.CT.
4. Ariz. Ethics Op. 97-04 (Computer
Technology: Advertising and Solicitation;
Confidentiality) (April 1997).
5. Examples are the Personal Injury Attorney
Network ( 10,535 members) and White
Collar Criminal Defense Attorneys ( 7,532
7. See, e.g., Carolyn Elefant, Stop the Madness: How the NYCLA’s Ethics Opinion on
LinkedIn Forces Lawyers To Act Deceptively
and Violate LinkedIn User Agreement,
social-media/stop-the-madness; and Joe
Patrice, Maybe Your LinkedIn Profile Won’t
Get You Disbarred! http://abovethelaw.