LinkedIn and the Lawyer Advertising Rules
What are “Advertisements” and “Solicitations” in the context of your online profile?
By Steve Thomas
After long ignoring my LinkedIn page, I finally updated my information, rewrote my background, answered all of the questions in the profile builder, and sent out connection requests to friends and colleagues. All caught up. But then one of my partners catches me in the hall and says, “Do you think the lawyer advertising rules apply to LinkedIn pages?”
As it turns out, the answer is yes.
In Texas and many other states, lawyer advertisements in the public media are regulated by disciplinary rules that govern the content of the ads, requiring disclosure of some information while prohibiting other content. In Texas, Part VII of the Texas Disciplinary Rules of Professional Conduct (the “Rules”) governs lawyer advertising. The Rules are supplemented by Rule Comments, Ethics Opinions and Interpretive Comments. So let’s see what they have to say, directly or indirectly, about LinkedIn.
1. Is my LinkedIn profile an “advertisement” subject to the Rules?
Rule 7.07(b) requires that any “advertisement in the public media” by a lawyer or law firm be filed with the Advertising Review Committee of the State Bar of Texas in accordance with the requirements of that Rule. The State Bar defined the term “public media” in Interpretive Comment 1 (1995):
A public media advertisement is an advertisement broadcast or made available to the general public, such as telephone Yellow Pages, newspapers or other periodicals, outdoor display, the Internet, radio or television.
There might be ways to prevent your LinkedIn profile from becoming part of the “public media.” The settings on your LinkedIn page allow you to limit what is viewed by people who are not in your network, including what people will see in search results on Google, Yahoo!, Bing and other search engines. Go to settings and click on “Edit your public profile.”
But the whole point is networking—you want people you don’t know to be able to see your profile, at least to some extent. So if your LinkedIn profile is in the “public media,” is it an “advertisement”? Rule 7.02, Comment 1 provides some guidance:
The Rules within Part VII are intended to regulate communications made for the purpose of obtaining professional employment. They are not intended to affect other forms of speech by lawyers, such as political advertisements or political commentary, except insofar as a lawyer’s effort to obtain employment is linked to a matter of current public debate.
With regard to LinkedIn, the State Bar has removed all uncertainty in Interpretive Comment 17 (1996, revised 2003):
C. Social Media Sites. Landing pages such as those on Facebook, Twitter, LinkedIn, etc. where the landing page is generally available to the public are advertisements. Where access is limited to existing clients and personal friends, filing with the Advertising Review Department is not required.
So are you required to file your LinkedIn profile with the State Bar? Not necessarily. Even some communications that are clearly “advertisements in the public media” are exempt from Part VII’s filing requirements. Rule 7.07(e) provides a laundry list of exempt information. Said another way, if your LinkedIn page contains anything that is NOT listed in Rule 7.07(e), you probably have an obligation to file. The Rule 7.07(e) laundry list is fairly long, and contains a broad variety of basic information that you can include on your LinkedIn site without triggering filing requirements, including your contact information and basic information about your practice. You can find a copy of all of the Rules and Comments in Part VII, including Rule 7.07, on the State Bar website here, or on my firm’s website here. Copies of the Interpretive Comments are available from the State Bar here, my firm’s website here.
Note that if an update that you post on LinkedIn constitutes a “communication[] made for the purpose of obtaining professional employment” (Rule 7.02, Comment 1), then it might be an advertisement subject to Rule 7.07, and there might be a filing requirement.
Remember that if there is a filing requirement, there is also an internal approval and record-retention requirement. All filed advertisements must be approved in writing by a lawyer in the firm, and a copy of the advertisement and the lawyer’s written approval must be kept by the lawyer or the firm for four years after its last dissemination. Rule 7.04(e) and (f).
And finally, even if there is no filing requirement, every communication by a lawyer in the public media still must comply with Rule 7.02.
2. Are InMail or OpenLink messages “solicitations” governed by Rule 7.05?
Suppose you read an article about someone who has a legal problem directly within your area of expertise. You don’t have the person’s contact information, but you find a matching profile on LinkedIn. All you have to do now is write an InMail or OpenLink message to contact the person. But wait—is the message a “solicitation”? Are you required to put “ADVERTISEMENT” in the subject line as required by Rule 7.05(b)(2) for email solicitations?
Subsections (b) and (c) of Rule 7.05 impose certain requirements for any “written, electronic or digital” communication sent to “prospective clients for the purpose of obtaining professional employment.” But before you start dropping “ADVERTISEMENT” into your subject lines (Rule 7.05(b)(2)) and writing long disclosures about what prompted you to contact the person (Rule 7.05(b)(5)), there are some broad exclusions contained in subparagraph (f).
For example, if you are writing to a family member, or if the recipient is a present or former client, subsections (b) and (c) don’t apply. Rule 7.05(f)(1). Even if the person is someone you don’t know, if he or she asks you for information, you aren’t bound by the solicitation requirements. Rule 7.05(f)(4). Also, communications that are not specifically addressing a particular past occurrence or event, or a series of past occurrences or events, and that are not “motivated by or concerned with the prospective client’s specific existing legal problem” don’t come under the solicitation requirements. Rule 7.05(f)(2). Remember, even if the solicitation requirements don’t apply, other Rules (particularly 7.02) likely still do.
Comment 4 to Rule 7.05 clarifies that newsletters or other works published by a lawyer that are not circulated for the purpose of obtaining professional employment are not within the ambit of 7.05(b) and (c).
If the solicitation requirements do apply, remember that you, or some other lawyer in your firm must approve the communication in writing and that approval, along with a copy of the communication, must be retained by the lawyer or the firm for at least four years. Rule 7.05(d) and (e). And solicitations must be filed with the State Bar as required by Rule 7.07(a).
3. Am I claiming special expertise in violation of the Rules by listing my “Skills”?
Rule 7.02 prohibits any false or misleading communication by an attorney in any communication, regardless of whether the communication is an advertisement in the public media. See Comment 2 to Rule 7.02. In other words, Rule 7.02 is a threshold rule. Comment 8 clarifies that “[w]hen a communication permitted by Rule 7.02 is made in the public media, the lawyer should consult Rule 7.04 for further guidance and restrictions” and “[w]hen a communication permitted by Rule 7.02 is made by a lawyer through a solicitation communication, the lawyer should consult Rules 7.03 and 7.05 for further guidance and restrictions.” But virtually every communication must comply with Rule 7.02.
Rule 7.02 describes a number of communications considered to be “false and misleading,” including:
7.02(a)(4): a communication that “compares the lawyer’s services with other lawyers’ services, unless the comparison can be substantiated by reference to verifiable, objective data.” Comment 7 clarifies that “a simple statement of a lawyer’s own qualifications devoid of comparisons to other lawyers does not pose the same risk of being misleading so does not violate sub-paragraph (a)(4).”
7.02(a)(6): a communication that “designates one or more specific areas of practice in an advertisement in the public media or in a solicitation communication unless the advertising or soliciting lawyer is competent to handle legal matters in each such area of practice.” Subsection (b) clarifies that “Rule 7.02(a)(6) does not require that a lawyer be certified by the Texas Board of Legal Specialization at the time of advertising in a specific area of practice, but such certification shall conclusively establish that such lawyer satisfies the requirements of Rule 7.02(a)(6) with respect to the area(s) of practice in which such lawyer is certified.”
On the issue of claiming special expertise, subsection (c) is more direct, stating that “A lawyer shall not advertise in the public media or state in a solicitation communication that the lawyer is a specialist except as permitted under Rule 7.04.” Rule 7.04(a) reiterates the prohibition against claiming to be a “specialist” in advertisements in the public media, but provides exceptions to that rule for patent lawyers, trademark attorneys, listings in attorney referral services, and publications directed at other attorneys. 7.04(b)(2) allows board certified attorneys to advertise their certification in limited ways.
Comment 2 to Rule 7.04 clarifies that “[p]aragraphs (a) and (b) [of the Rule] permit a lawyer, under the restrictions set forth, to indicate areas of practice in advertisements about the lawyer’s services.” Comment 6 states that “if the advertisement in the public media mentions any area of the law in which the lawyer practices, then, because of the likelihood of misleading material, the lawyer must comply with paragraph (b).” Rule 7.04(r) states that a “lawyer who advertises on the internet must display the statements and disclosures required by Rule 7.04.”
A fair reading of the Rule and its comments suggests that, if an attorney’s LinkedIn page qualifies as an “advertisement in the public media,” and the attorney lists particular “skills” on that page, the attorney must comply with Rule 7.04(b), which has two subparts. Paragraph (b)(1) requires such a lawyer to “publish or broadcast the name of at least one lawyer who is responsible for the content of such advertisement.” Fortunately, Interpretive Comment 6 (1995) makes clear that “[i]t is presumed that a lawyer or law firm whose name is published in an advertisement is responsible for the content of the advertisement and therefore meets the requirements of Section 7.04(b)(1).” As long as you are taking responsibility for your own LinkedIn profile, you don’t have to make a special statement. Paragraph (b)(2), on the other hand, is a prohibition against claiming special certification (unless you are in fact board certified). Since the “skills” listings in LinkedIn generally do not mention any form of certification (unless you modify them to do so), this part of the Rule should not come into play.
So the bottom line is that a lawyer can claim to be a “specialist” in a particular area or have special expertise in a particular subject in public communications as long as (a) the lawyer actually has such expertise (Rule 7.02), (b) the lawyer takes responsibility for the claim (Rule 7.04(b)(1)), (c) the lawyer does not claim to be “certified” or otherwise designated by third parties as having special competence in the area (except actual board certification) (Rule 7.04(b)(2)), and (d) the communication otherwise complies with the Rules. This conclusion is supported by Comment 12 to Rule 7.02: “Lawyers who wish to advertise in the public media that they specialize should refer to Rule 7.04. Lawyers who wish to assert a specialty in a solicitation communication should refer to Rule 7.05.” Also, note that the laundry list of Rule 7.07(e) (information you can include in an “advertisement” without triggering the filing requirement) includes “the particular areas of law in which the lawyer or firm specializes or possesses special competence” and “the particular areas of law in which the lawyer or firm practices or concentrates or to which it limits its practice.” Rule 7.07(e)(1)(ii) and (iii).
4. Is the mutual exchange of endorsements a violation of Rule 7.03(b)?
Confident that your many years of experience in, say, employment law make endorsements appropriate for your skill in that area, you and all your employment law friends get together and agree to endorse each other on your LinkedIn pages for “employment law” as a skill. Does your little endorsement cartel violate the Rules? The “skills” section of LinkedIn is relatively new, and not surprisingly there is little guidance on this issue.
On one hand, Rule 7.03(b) states that “[a] lawyer shall not pay, give, or offer to pay or give anything of value to a person not licensed to practice law for soliciting prospective clients for, or referring clients or prospective clients to, any lawyer or firm, except that a lawyer may pay reasonable fees for advertising and public relations services rendered in accordance with this Rule and may pay the usual charges of a lawyer referral service that meets the requirements of Occupational Code Title 5, Subtitle B, Chapter 952 [now Texas Occupations Code Section 952.001 et seq.].” Of course, this is directed at giving things of value to “a person not licensed to practice law,” so the conduct of lawyers referring each other seems outside of the Rule.
Rule 7.02 contains some clear prohibitions against statements in any communication that are “false and misleading,” but as long as you actually have expertise in employment law, and you are confident that the other people you are endorsing have that expertise as well, the mutuality of the endorsement standing alone does not appear to be addressed directly by the Rules.
Finally, Comment 7 to Rule 7.02 states that “a lawyer making a referral to another lawyer may express a good faith subjective opinion regarding that other lawyer.” Although this addresses referrals rather than endorsements, as long as your endorsements are made in good faith this Comment would appear to support them by analogy.
Conclusion.
The extent to which the Rules apply to your LinkedIn page will depend to a great extent on the information your page contains. For example, if you talk about recent successes in particular cases, Rule 7.02(a)(2) and Interpretive Comments 25 and 26 impose a number of requirements and restrictions on how such successes can be communicated and what information must be disclosed. And be careful about comparing your legal services to other lawyers or law firms unless you comply with Rule 7.02(a)(4). Like every other form of lawyer advertising, your LinkedIn page needs to be carefully crafted with all of the Rules in mind.
A portion of this article previously was published in the October 2013 edition of The Dicta, the monthly publication of the Dallas Association of Young Lawyers. Contact Steve Thomas at sthomas@mcslaw.com.