Ethics Guardians Are Falling Behind

by Adrian Dayton
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shutterstock_96277766Originally published in The National Law Journal on October 7, 2013 

In August, the New York State Bar Association issued an ethics opinion telling lawyers they should no longer use the “specialties” section on the professional networking site LinkedIn. The only thing is, LinkedIn.com had removed its “specialties” section months earlier.

The episode is but one piece of evidence that legal ethics guidelines across the country are failing to keep up technological advances. This and similar opinions issued elsewhere make it increasingly difficult for large firms to navigate ethical strictures involving marketing practices that cross state lines.

In another example, in South Carolina the Professional Rules of Conduct hold that “only certified specialists may use the term ‘expert’ or other forms of the word.” But then LinkedIn introduced a section called “Skills & Expertise.” South Carolina responded in March with an alert advising attorneys “on how to hide skill endorsements and minimize the risk” of ­discipline. This observes the letter but not the spirit of the ethics code. The whole point is to avoid deceptive practices. Is it deceptive for the guy who changes your oil to endorse your skill at mergers & acquisitions? No. It isn’t particularly useful or relevant information, but it isn’t misleading.

On September 11, the Florida Bar warned an attorney that “you may not list your areas of practice under the headers ‘Skills & Expertise’ as you are not board certified.” The organization cited a New York opinion in support of its position.

The only problem? New York’s position wasn’t similar at all, having addressed the defunct LinkedIn “Specialties” section. The New York opinion even warned, “We do not in this opinion address whether the lawyer or law firm could… list practice areas under other headings such as ‘Products & Services’ or ‘Skills & Expertise.’ ”

Some legal marketers have wondered, “Can’t we just get LinkedIn to change the section to ‘Skills’ instead of ‘Skills and Expertise’?” But is an endorsement less misleading or deceptive because it is under the former rather than the latter? I can’t imagine that the public would be deceived by either of these.

There is no evidence that any lawyer has been disciplined for including nonboard-certified skills in the “Skills & Expertise” section, so this may be much ado about nothing. The bottom line is that lawyers should worry about basic ethical principles regardless of the latest software.

Legal ethics boards are trying to micromanage the use of the Internet by lawyers, rather than target actual deceptive practices that are obvious on their face. They should worry about rooting out deceptive practices and leave the semantics of each new change in social networking to someone else.

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Adrian Dayton
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