Ethics Guardians Are Falling Behind

by Adrian Dayton

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, 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.

Written by:

Adrian Dayton

Adrian Dayton on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.