Dear Fellow Members:
Below you will find a link to an online copy of the Maryland Rules of Professional Conduct. We have provided this link in hopes of making your search for answers to your legal ethics questions easier. As always, if you need additional guidance, please do not hesitate to call the Legal Ethics Committee hotline at the number listed in the current issue of your bar newsletter.
MD Rules of Professional Conduct
Legal Ethics Hotline Volunteers ... February/March
Diana Cobo ... 240-876-2141 ... email@example.com
David Gavin ... 301-279-2700 ... firstname.lastname@example.org
Revisiting the Evolution of Legal Ethics and Social Media Advertising
Two years ago, we outlined in this space the evolving intersection of legal ethics and advertising on social media. Since that time, the number of lawyers on social media has grown substantially. In fact, the ABA suggests that 75% (at a minimum) of lawyers use social media in either a personal or professional capacity. See Allison Shields, “Blogging & Social Media,” ABA TechReport, 1, 3. Since our article, there have been a few additional formal clarifications regarding the ethics of attorney advertising on social media, specifically regarding profiles on social media platforms such as on LinkedIn and AVVO.
The Maryland Attorneys’ Rules of Professional Conduct (MARPC) clarifiy that “(a) Subject to the requirements of Rules 19-307.1 and 19-307.3(b), a lawyer may advertise services through public media, such as a telephone directory, legal directory, newspaper or other periodical, outdoor, radio or television advertising, or through communications not involving in- person contact. (b) A copy or recording of an advertisement or such other communication shall be kept for at least three years after its last dissemination along with a record of when and where it was used.” MARPC 19-307.2.
On many social media platforms, such as LinkedIn, Avvo, Twitter, Google+, Martindale Hubble, and Facebook, profiles either are created by the platform or by the user, and the content of the profiles can be considered an “advertisement” under a state’s rules of professional conduct. Further, opportunities exist on these platforms for colleagues as well as clients to recommend and/or endorse an attorney. Some of these “recommendations” take the form of written descriptions of the attorney by colleagues/clients. Other “recommendation” methods are simply accomplished by a computer click, such as a “Star” rating on Facebook or a “Skills & Endorsements” notation on LinkedIn. While these social media “recommendations” are labeled differently by the various platforms, states’ rules of professional conduct likely apply to all such recommendations as advertisements. See Model Rules and MARPC 19-307.1, 19-307.2.
Information collected from the social media platform LinkedIn indicates that approximately 313 million LinkedIn users exist (16 million in the United States). See “LinkedIn Company Profile and Statistics,” Statistic Brain (Oct. 28, 2014). With regard to LinkedIn, three bar associations within the State of New York have recently differed on the degree to which content within a profile on LinkedIn constitutes “advertising.”
In the Association of the Bar of the City of New York Committee on Professional Ethics, Formal Opinion 2015-7, the Committee on Professional Ethics states that “An attorney’s individual LinkedIn profile or other content constitutes attorney advertising only if it meets all five of the following criteria: (a) it is a communication made by or on behalf of the lawyer; (b) the primary purpose of the LinkedIn content is to attract new clients to retain the lawyer for pecuniary gain; (c) the LinkedIn content relates to the legal services offered by the lawyer; (d) the LinkedIn content is intended to be viewed by potential new clients; and (e) the LinkedIn content does not fall within any recognized exception to the definition of attorney advertising.”
In NYCLA Ethics Op. 748 (2015), however, the New York County Lawyer’s Association succinctly concluded, in a more strict analysis, that a “LinkedIn profile that contains only one’s education and current and past employment does not constitute Attorney Advertising[, but] [i]f an attorney chooses to include information such as practice areas, skills, endorsements, or recommendations, the attorney must treat his or her LinkedIn profile as attorney advertising and include appropriate disclaimers pursuant to Rule 7.1.”
Finally, the Social Media Ethics Guidelines of the Commercial and Federal Litigation Section of the New York State Bar Association (2015) provides a similar, but slightly different standard, such that, “A lawyer’s social media profile that is used only for personal purposes is not subject to attorney advertising and solicitation rules. However, a social media profile, posting or blog a lawyer primarily uses for the purpose of the retention of the lawyer or his law firm is subject to such rules. Hybrid accounts may need to comply with attorney advertising and solicitation rules if used for the primary purpose of the retention of the lawyer or his law firm.”
On the social media platform AVVO, an attorney can “claim” his or her existing profile (created by AVVO for all members of state bar associations), and AVVO automatically provides a rating for attorneys in their system. The Washington State Bar Association Ethics Opinion: 2014-2 outlined some guidelines as to whether AVVO profiles (and their ratings) constitute advertising under legal rules for professional conduct. First, with regard to these social media profiles as a whole, the Washington State Bar Association warned that “If Lawyer chooses to participate in the website, then Lawyer must periodically monitor her profile to reasonably ensure that inaccurate client ratings or peer endorsements are deleted or disclaimed in a reasonably prompt manner, if it is reasonably feasible to do so. “
Second, regarding social media “ratings” of attorneys, the Washington State Bar Association clarified that if the “Lawyer determines that the website’s numeric and/or descriptive ratings of lawyers are not based upon the lawyer’s performance or merit and the website does not disclose how the ratings are calculated, then the lawyer must not participate in the website. If after claiming her profile, [the] Lawyer determines that the website’s numeric and/or descriptive ratings of lawyers are not based upon the lawyer’s performance or merit and the website does not disclose how the ratings are calculated, then the lawyer must limit participation to ensuring that information is accurate and should consider posting a disclaimer, if it is reasonably feasible to do so.”
Even though recommendations, such as those on AVVO, are generally provided by third parties and not by attorneys, consistent with the Washington State Bar Association, prior opinions agree that if an attorney has “claimed” or used a profile on a social media platform, then the attorney has the ethical responsibility to regularly review the platform for any ethical violations. See Model / MLRPC 7.1 & 7.2.
So, the lesson learned from these opinions continues to be that lawyers should remain vigilant regarding, not only as to their own websites, but also as to social media sites in which they affirmatively participate as this area of law continues to evolve from state to state..
Adam L. Van Grack, Committee Member
Daniel L. Shea, Committee Co-Chair
Samuel M. Shapiro, Committee Co-Chair
Allen J. Katz, Committee Co-Chair.
Allen J. Katz
Samuel M. Shapiro
Daniel L. Shea
March 16, 2017
April 20, 2017
Meetings will be held at 4:30 p.m. on the 3rd Thursday of the month (September - May) in the upstairs conference room of the Bar Association building, unless otherwise noted.