By Steve Thorpe
Legal News
Marketing and networking are now a big part of the evolving legal landscape. Attorneys and law firms already have to be careful with their postings on social media sites like Facebook. Now the professional networking site LinkedIn has complicated the picture for attorneys with a new feature that allows users to "endorse" other site members for their skills and background. Donald Campbell is an attorney with Collins, Einhorn, Farrell in Southfield. He is an ethics specialist. His primary practice areas include ethics advice, grievance defense, judicial tenure matters, and legal malpractice defense.
Thorpe: What sort of endorsements might an attorney give or get on LinkedIn?
Campbell: So the terms are clear, LinkedIn has both recommendations and endorsements. The recommendation option has been around for quite awhile, it involves a paragraph or tweet-like entry by a person who presumably knows you well enough and gives some background for the basis for the recommendation. Endorsements are a much newer feature. They take only a click. They were introduced in about November 2012. By January 2013 LinkedIn reported nearly 200 million endorsements had been made and that another 10 million were being added each day. You can have up to 50 skills and the top 10 endorsed skills will show the pictures of those who endorse you in your profile. Most 'skills' are auto-filled by LinkedIn based on your profile. You can also select skills that are not suggested by LinkedIn. If you can name it as a skill, you can give or get an endorsement for it on LinkedIn.
Thorpe: Tell us about the potential pitfalls for attorneys of the endorsement system.
Campbell: The endorsement system may present potential issues for lawyers who are admitted in other jurisdictions besides Michigan. The unique nature of some of the lawyer advertising rules in other states may prohibit recommendations and may prohibit endorsements. Indiana has such a rule that prohibits recommendations. It is unclear whether it also precludes endorsements. Michigan's rules do not expressly prevent either. I am aware that the Grievance Administrator for the Michigan Attorney Grievance Commission has written previously that, "client testimonials are inherently misleading." Under the Central Hudson Standard, I don't believe that position is supportable and therefore any attempt to limit speech based on such a theory would be unconstitutional. Still, the fact that he feels that way might be enough for some to avoid accepting endorsements. At a minimum, it might give you an excuse for not endorsing someone else when asked.
Thorpe: What cautions are appropriate for attorneys endorsing the skills of other attorneys?
Campbell: At a minimum, you should be aware of your firm's social-media policy. Let me start over. At a minimum, your firm should draft and implement a social-media policy. That policy should cover (either permitting or restricting) endorsements. It is a good idea for firms to have a system in place whereby the lawyers for the firm are at least aware of, if not vetting, the endorsements being given. Endorsements have been likened to ''liking'' something on Facebook. At this early stage it is difficult to say how endorsements will be perceived by regulators, by opposing counsel, your significant other (all of whom have the potential to make your life very uncomfortable). My suggestion to firms is: protect your brand and use the endorsement system effectively to market your firm and its lawyers.
Thorpe: Some states prohibit attorneys from billing themselves as specialists. What is Michigan's stance on that issue?
Campbell: Relying on the old Code of Professional Responsibility DR 2-105(A) the State Bar Ethics Opinion C-232 concluded it was not proper for a Michigan lawyer to advertise as a specialist in a particular area of practice because this implies that the lawyer's qualifications in that field have been reviewed and acknowledged by an entity authorized and having the expertise to do so. The same opinion concluded it would not be improper for a lawyer to advertise as specializing in a particular area of practice, provided that such a claim is not in fact false, fraudulent, misleading or deceptive. It is noteworthy that while DR 2-105(A)'s prohibition against the use of the term ''specialist'' was incorporated into the ABA's Model Rules of Professional Conduct in Rule 7.4(d), but Michigan rejected that language and instead promulgated a much less restrictive rule concerning communications about fields of practice. Michigan's Rule of Professional Conduct 7.4 simply reads, "A lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law."
The U.S. Supreme Court in In re Peel struck down an Illinois rule that banned lawyers' use of the terms 'specialist,' "certified,'' and 'expert.' A plurality of the Court noted that terms like "air conditioning specialist" or ''foreign car specialist" are common and that the public does not think that they imply a claim of formal recognition by the state. Webster's defines 'specialist' as, "one who specializes in a particular occupation, practice, or branch of learning." Black's Law Dictionary defines 'specialist' as "relating to designating a species, kind, individual, thing or sort; designed for a particular purpose, confined to a particular purpose, object, person or class. Unusual, extraordinary."
The bottom line is that given the common understanding of the term 'specialist' and so long as it is used in a truthful and non-deceptive manner, a Michigan lawyer may use the term ''specialist'' in communicating about her or his practice.
Thorpe: When an attorney is concerned about an ethical question regarding the site, where is the best place to go for answers?
Campbell: If review of the ethics rules does not provide a clear answer, seek advice. The State Bar has an ethics helpline: 877-558-4760. Or, call an ethics specialist.
Thorpe: What can an attorney do to correct false information about themselves that appear on LinkedIn and other sites? Do they have a duty to try and correct it?
Campbell: On LinkedIn you control your own profile and site. You must accept recommendations for these to appear. You can hide an endorsement if you don't want it. You can even delete a skill and thereby delete the endorsement. Someone may endorse you for a skill you don't have, in that case you can just hide or delete the skill. As with all lawyer communications, you should be careful to keep your LinkedIn information truthful and non-deceptive.
Published: Thu, May 23, 2013
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