I have received a large number of endorsements on LinkedIn recently but some are from people I do not know. Do I need to monitor this?
The question of LinkedIn endorsements has generated a number of questions among legal ethics commentators. The endorsements typically are not requested by the attorney, so the assumption is the attorney need not monitor these endorsements. On the other hand, LinkedIn allows a person to “hide” some endorsements, so the lawyer may be able to exercise control over what appears on his or her LinkedIn page. This creates a dilemma for the lawyer.
SCR 20:7.1 of the Wisconsin Rules of Professional Conduct provides that any statements about a lawyer’s services must not be “false or misleading.” The rule goes on to define what is meant by false or misleading and states that a communication cannot contain a “paid endorsement of the lawyer without identifying the fact that such payment has been made or, if the … endorsement is not made by an actual client, without identifying that fact.” Thus, there is a question whether a lawyer must indicate that any endorsement made on the LinkedIn page is not made by an actual client if that is the case (which it often is).
The easy step for the lawyer is to make sure that each endorsement is reasonable or appropriate regardless of who made the endorsement. In other words, the lawyer should not allow an endorsement to remain on the LinkedIn page if the recommendation addresses an area in which the lawyer does not have background or some level of experience. This means that the lawyer must monitor the endorsements on the LinkedIn page and “hide” or eliminate those endorsements that do not identify areas of practice or areas for which the lawyer is familiar with the legal issues involved.
This also raises the question whether the lawyer should “hide” endorsements that are made by individuals who do not directly know the attorney. I do not believe that such an endorsement would be false or misleading if it is about an appropriate area of practice or legal experience, even though the person making the endorsement is not familiar with or knowledgeable about the lawyer’s practice. It is best to monitor the content of the endorsement rather than focus on who is making the endorsement.
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The more difficult question is whether the lawyer must take steps to identify endorsements not made by his or her clients. Endorsements on the LinkedIn page are not created by the lawyer but the lawyer can monitor the endorsements and address information that might be false or misleading. Because the lawyer is not directly creating the endorsement (unless he or she has requested it), it would not appear necessary to continually monitor the endorsements and identify which endorsements are made by clients and which endorsements are not made by clients. Most often, the endorsements are not made by clients but rather by other people who know the attorney and would like to receive similar endorsements from the attorney. Because the actual creation of the endorsement is not being made by the lawyer, it would seem that the lawyer does not have to worry about identifying whether or not the endorsement is made by a client.
This continues to be an area of debate, and the analysis may change over time. For now, lawyers should be ethically safe if their monitoring of endorsements is limited to the accuracy of the endorsements and if they make targeted efforts to “hide” those endorsements that are marginal or do not accurately describe their practice areas or experience.