This article was originally published by Bloomberg Law on May 17, 2017.
Lawyers who maintain active social media presences should be aware of two recent opinions by ethics committees in New York discussing the extent to which lawyers’ postings on the social media page LinkedIn constitute attorney advertising in New York. These committees addressed the extent to which lawyers’ social media postings subject them to regulation for attorney advertising within the meaning of the New York Rules of Professional Conduct. See, NYC Bar Association Formal Opinion 2015-7, Application of Attorney Advertising Rules to LinkedIn, NYC Bar Association; NYCLA Professional Ethics Committee, Formal Opinion 748.[1] For example, is the mere listing of biographical information on LinkedIn sufficient to constitute attorney advertising, so that the copy must be preserved for a period of one year and designated as such? Or, as the City Bar posits, is it more appropriate to look to the primary purpose of the posting to determine whether the lawyer’s subjective intent was to garner the retention of the lawyer or law firm? This article attempts to reconcile the views and perspectives of the two ethics committees in order to provide guidance to practicing lawyers in New York.
Regulation of attorney advertising in New York begins with the New York Rules of Professional Conduct and, in particular, RPC 7.1, which, in subdivision (a), generally proscribes advertising that is false, deceptive or misleading. While permitting certain areas of advertising copy, including basic biographical information, bank references, legal fees charged and, with written consent, the names of clients regularly represented, RPC 7.1 generally forbids some types of advertisements, including, among other things, paid endorsements or testimonials without disclosing that the portrayal is by a paid actor, or the use of a fictitious law firm. See, RPC 7.1(c). Whether or not an internet posting constitutes attorney advertising is important, as the rules require advertising copy to be labeled “Attorney Advertising,” and to be retained by the law firm for a period of not less than three years in the case of hard copies and one year for computer accessible communications. See, RPC 7.1(f), (k). RPC 7.1 underwent a revision by the Appellate Division following the Second Circuit’s 2010 decision in Alexander v. Cahill, 598 F.3d 79 (2d Cir. 2010), which found that certain aspects of the predecessor rule were unconstitutional regulation of commercial speech. The rule now provides detailed guidance on the details of permissible lawyer advertising, a full exposition of which would be beyond the scope of this article.
The definition of an advertisement is significant. According to the definitions section of the Rules of Professional Conduct, an advertisement is “any public or private communication made by or on behalf of a lawyer or law firm about that lawyer or law firm’s services, the primary purpose of which is for the retention of the lawyer or law firm.” (RPC 1.0(a).) The rule explicitly excludes from its definition communications with existing clients or other lawyers. The NYSBA commentary adds the gloss that advertising should be narrowly defined as limited to communications whose primary purpose is “retention of the lawyer or law firm for pecuniary gain…”[2] The “pecuniary gain” factor is not found in the text of the rule itself.
So how do we ascertain the primary purpose of a lawyer’s communication, and whether it is seeking the retention of the lawyer or something else? Some explanation is provided by the New York State Bar Association commentary to the rules, which states that “communications to other lawyers, including those made in bar association publications and other publications targeted primarily at lawyers, are excluded from the special rules governing lawyer advertising even if their purpose is the retention of the lawyer or the law firm.”[3] Similarly, topical newsletters, client alerts, or blogs intended to educate recipients about new developments in the law generally are not considered advertising.[4]
On the other hand, client alerts or blogs that provide information or news primarily about the lawyer or law firm “generally would be considered advertising.”[5] Even if a lawyer does not prepare a communication herself, it could be considered attorney advertising to forward or disseminate a favorable article about the lawyer’s services written by a third party.[6] However, simply describing the lawyer’s charitable or educational works would be considered mere branding, and not advertising.
Also generally excluded from the definition of advertising would be a lawyer’s participation in an educational program “because its primary purpose is to educate and inform rather than attract clients.”[7] However, an educational program might be found to cross the line and constitute advertising if the participants were actively encouraged to retain the lawyer. The NYSBA commentary indicates that a lawyer’s participation in and promotion of cultural, sporting and charitable events generally are not considered advertising. Nor would a lawyer’s dissemination of law firm giveaways, such as complimentary pencils or coffee cups, be considered advertising. Rather, such marketing swag ordinarily would be considered as enhancing the firm’s brand, and not directly seeking retention of the lawyer.
How do these rules apply to social media? In its 2015 Opinion 748, the New York County Lawyers Association Professional Ethics Committee (of which the author is a member) acknowledged that the definition of attorney advertising is restricted to communications about the lawyer or the law firm’s services, the primary purpose of which is retention of the lawyer for pecuniary gain.[8] According to NYCLA Ethics Opinion 748, a LinkedIn profile that contains only biographical information, such as education and work history, would not qualify as an attorney advertisement within the meaning of NY RPC 7.1. Nor did the NYCLA Committee find that filling out the fields of skills, endorsements or recommendations on LinkedIn would constitute a violation of RPC 7.4, which prohibits an attorney from identifying herself as a specialist without appropriate advanced certification from a recognized national accreditation authority.
While profiles containing lawyers’ background information would not be considered advertising, the NYCLA Committee argued that a profile including “subjective statements regarding an attorney’s skills, area of practice, endorsements and testimonials from clients or colleagues is likely to be considered advertising.”[9] The NYCLA Committee reminded lawyers that in the event that advertisements were reasonably likely to create an expectation of results or compared the lawyer’s services with those of other lawyers, the attorney should label the page as “Attorney advertising” and include the disclaimer “Prior results do not guarantee a similar outcome.”
The NYCLA Committee cautioned that New York lawyers periodically must monitor and review the endorsements on their social media pages. In the case of third-party external endorsements on lawyers’ LinkedIn profiles — for example, an endorsement by a colleague or client — lawyers have an ongoing obligation periodically to review social networking sites at reasonable intervals to confirm their accuracy and ensure that the LinkedIn profiles don’t contain skills and endorsements to which they cannot honestly lay claim. For example, a matrimonial lawyer who is the recipient of an unrequested endorsement for her skills in patent law should periodically review and delete any undeserved praise for legal experience she patently lacks.
The New York City Bar, in its December 2015 Opinion 2015-7, rejected a bright line test for determining what qualifies as attorney advertising on social media, and instead reminded New York lawyers that the definition of advertising in RPC 1.0 depends, as also indicated in the NYCLA opinion, on “the primary purpose for the retention of the lawyer or law firm.”[10] After a detailed analysis of prior ethics opinions on the definition of advertising, the City Bar Committee determined that a LinkedIn profile would constitute attorney advertising only if it had for its primary purpose the retention of the lawyer for pecuniary gain, which the City Bar Committee determined was based on the “subjective intent of the lawyer who makes the communication. . . .”[11]
The City Bar also cautioned that not all LinkedIn communications are made for the primary purpose of retention for pecuniary gain, and listed several other potential motivations, including networking with college and law school classmates, keeping track of career developments of friends and colleagues, publishing and sharing articles, looking for jobs, maintaining a digital resume, and enhancing the lawyer’s brand. For instance, the attorney advertising rule would not apply to a lawyer in government service or academia, working for a non-profit, or trolling for pro-bono assignments.
The City Bar articulated a five-step analysis to determine whether a LinkedIn profile would constitute attorney advertising. A communication is not advertising unless: (a) it is made by or on behalf of the lawyer; (b) its primary purpose is to attract new clients for pecuniary gain; (c) the contents relate to the lawyers’ legal services; (d) the contents are intended to be viewed by potential new clients; (e) there is no recognized exception under the Rules of Professional Conduct, e.g., for communications to other lawyers or existing clients. Under the City Bar’s analysis, thus, content relating to the lawyer’s skills or practice areas, assuming it meets the other criteria in its definition, would constitute an advertisement. The City Bar provides the example of a lawyer is display of an endorsement for litigation, matrimonial or appeals as constituting advertising. On the other hand, according to the City Bar, an endorsement for writing, public speaking or technology would not necessarily relate to the lawyer’s legal services, nor would a recommendation describing a lawyer’s commitment to public service, social justice or volunteering be considered advertising.
Both bar associations agreed that the advertising rule would not apply to communications directed to other lawyers, communications not intended to result primarily in the retention of the lawyer nor law firm or communications to existing clients.
Conclusion
The City Bar and NYCLA have disagreed on several topics, with NYCLA adopting a bright-line test, but with the City Bar taking an unduly complicated and confusing approach that provides little guidance for ordinary practitioners. However, the two New York bar associations agree on several major areas with respect to advertising on social media. Not all communications on LinkedIn are considered advertising. Routine biographical and education information, along with basic marketing and branding of the law firm, generally would not be considered attorney advertising, and would not subject to labeling as such or the one-year retention requirements set forth in RPC 7.1. On the other hand, a detailed description of a lawyer’s legal skills with intent to garner retention for pecuniary gain would be likely to constitute attorney advertising and should be labeled as such and retained for the relevant period.
Moreover, law firms with offices in other states should be mindful of potentially additional requirements in those jurisdictions. A comparison of New York advertising rules with those of other jurisdictions is beyond the scope of this article.
[1] www.nycla.org/ethics; www.nycbar.org/members/formal-opinion-2015-7-application
[2] RPC 7.1 Comment [6]
[3] RPC 7.1 comment [7]
[4] RPC 7.1 comment [7]
[5] RPC 7.1 comment [7]
[6] RPC 7.1 [8]
[7] RPC 7.1 Comment [9]
[8] NYCLA eth.op.748, www.nycla.org/ethics
[9] NYCLA eth. op. 748 at 5
[10] NYCBA eth. op. 2015-7
[11] NYCBA eth. op. 2015-7