Vol. 83, No. 6, June 2010
I have been told that things I put on my LinkedIn page are subject to the Rules of Professional Conduct. Is that true?
Dean R. Dietrich, Marquette 1977, of Ruder Ware, Wausau, is chair of the State Bar Professional Ethics Committee.
It is true that the things you put on your LinkedIn or Facebook page, blog, or other social media may be subject to scrutiny under the Rules of Professional Conduct. However, the scrutiny will only arise if there is a problem with what is placed on your social-media site, such as information that allows someone to identify your clients, which would be contrary to the confidentiality rule, SCR 20:1.6. Because of confidentiality and conflict-of-interest rules, lawyers need to be very cautious about what they put on these social-networking sites and what they communicate to others. In addition, two rules regarding advertising relate specifically to what a lawyer may place on his or her LinkedIn page profile.
First, Wisconsin has very specific advertising rules that define what is “false or misleading.” SCR 20:7.1 provides that any advertising that a lawyer puts out may not be false or misleading. There are several provisions in this rule that would relate to what is put on the profile of a
SCR 20:7.1(c) provides that a communication is false or misleading if it “compares the lawyer’s services with other lawyers’ services, unless the comparison can be factually substantiated. …” This provision may be implicated if another person’s recommendation comparing the lawyer and other lawyers is listed on the LinkedIn page. Even though the statement would be in a recommendation from another party, it would be placed on the lawyer’s LinkedIn page and, therefore, would be subject to scrutiny under this provision. Lawyers must be aware of the specific wording of any type of recommendation made by another person.
Recommendations also have other implications. SCR 20:7.1(d) provides that a communication is false or misleading if it “contains any paid testimonial about, or paid endorsement of, the lawyer without identifying the fact that payment has been made or, if the testimonial or endorsement is not made by an actual client, without identifying that fact.” This provision again places some limitations on recommendations that others make about a lawyer on the lawyer’s LinkedIn page. The lawyer must identify if she or he has paid for the recommendation from a client, either by a direct payment or a reduction in fees. The disclosure obligations are not as clear in situations in which a statement is made by an individual who is not an actual client but is making a recommendation regarding the services provided by the lawyer. The rule strongly implies that there must be some indication in the recommendation that the individual is not actually a client who receives legal services from the attorney, which may mean that the person making the recommendation must identify in some manner the relationship between the individual and the attorney. This provision again requires the lawyer to monitor the information that is included on his or her LinkedIn page and especially the recommendations that are made by others.
Petition Before Supreme Court to Change Rule Regarding Trust Property in Credit Unions
The Office of Lawyer Regulation has filed a petition with the Wisconsin Supreme Court to amend the trust account rule (SCR 20:1.15) to “provide greater protection to the public when a lawyer holds trust property in a credit union.” This petition, which has not been set for court hearing, proposes that new language be added to SCR 20:1.15(e)(2) to address the requirement that trust property must “be held in an account in which each individual owner’s funds are eligible for insurance.” The purpose of the proposed language change is to address instances when client funds are held in a credit union, because an individual client’s funds are only eligible for National Credit Union Share Insurance Fund protection if the individual owner is a member of the credit union or the credit union is designated as a “low-income” credit union. As a result, lawyers who have trust account funds in a credit union might not have proper protection for those funds under the insurance protection afforded to credit unions. The protection would only apply if the individual client, not the attorney, is a member of the credit union in which the funds are held.
Lawyers who are currently holding a lawyer trust account in a credit union should be aware of this proposed change. It is anticipated the supreme court will hear the petition in fall 2010.
Second, a lawyer must be careful how she or he identifies the types of legal services that the lawyer provides. A lawyer may not state that he or she is a “specialist” in a particular practice area unless the lawyer has been certified as a specialist in a particular field of law. SCR 20:7.4(d) provides as follows:
“A lawyer shall not state or imply that a lawyer is certified as a specialist in a particular field of law, unless:
“(1) the lawyer has been certified as a specialist by an organization that has been approved by an appropriate state authority or that has been accredited by the American Bar Association; and
“(2) the name of the certifying organization is clearly identified in the communication.”
Thus, a lawyer may not state that she or he is a specialist in a particular area of practice unless the lawyer has been certified as a specialist by an appropriate entity. The lawyer may indicate on her Facebook page or LinkedIn page that her practice is focused in a particular area or limited to providing services in a particular area.
The use of social networking by lawyers for advertising is a topic of great interest, but there is little definition of how the Rules of Professional Conduct apply to advertising activities on social-networking sites. SCR 20:7.3 addresses the conduct of a lawyer when communicating with another person about the services to be provided by the lawyer. The rule encompasses “real-time” electronic communication. It is not clear whether posting to Facebook will be considered by disciplinary authorities to constitute real-time electronic communication. It is clear, however, that contact by a lawyer with an individual through Facebook could create an attorney-client relationship, depending on the statements made by the lawyer during those Facebook contacts.
Lawyers must be aware that the advertising rules and other Rules of Professional Conduct will apply to what the lawyer puts on a social-network page. Lawyers should exercise caution and continually monitor their presence on the social-network page to avoid any controversy over complying with the Rules of Professional Conduct.