I receive many endorsements under my LinkedIn page. Some of the endorsements come from people I hardly know. Should I be concerned about this?
The monitoring of endorsements on LinkedIn or on other social media sites has been a topic of debate and discussion among many lawyers. The general rule that appears to have gained acceptance is that a lawyer has the duty to monitor endorsements (and correct endorsements) for those social media sites where the lawyer has access to and control over what is included on the lawyer’s personal site. If the lawyer has not adopted or taken control of a particular website, the lawyer would not have the ability to control and monitor the comments made to the website, such as endorsements, and therefore would not have an ongoing duty to monitor what is posted to that web page.
Communications, including endorsements, would be considered lawyer advertising under most situations. This general theory about monitoring endorsements on websites is very challenging for lawyers because often the lawyer has no control whatsoever over what is initially placed on a site, and it becomes impossible to monitor everything that is referenced on a particular social media site.
SCR 20:7.1 of the Wisconsin Rules of Professional Conduct is the general rule that governs this situation. It provides that the lawyer may not make false or misleading communications about the lawyer or the lawyer’s services. In some instances, the lawyer is not making the communication but the communication is showing up on the lawyer’s page and is reviewed by others as a statement regarding the lawyer’s services.
A recent opinion from the New York City Bar Association (Opinion 2015-7: Application of Attorney Advertising Rules to LinkedIn) identified the factors that should be considered when determining whether a social media page is to be considered lawyer advertising. The opinion concluded that the following factors should be reviewed:
“(a) [I]t is a communication made by or on behalf of the lawyer; (b) the primary purpose of the LinkedIn content is to attract new clients to retain the lawyer for pecuniary gain; (c) the LinkedIn content relates to the legal services offered by the lawyer; (d) the LinkedIn content is intended to be viewed by potential new clients; and (e) the LinkedIn content does not fall within any recognized exception to the definition of attorney advertising.”
The opinion went on to point out that any information that is false or misleading would be subject to review even if a particular media site would not be considered lawyer advertising, based on the requirements of SCR 20:8.4(c) regarding engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation.
[A]ny information that is false or misleading would be subject to review even if a
particular media site would not be considered lawyer advertising.
Another opinion held that a lawyer is obligated to periodically review the endorsements contained on a LinkedIn site because the lawyer has control over the content of the site and must comply with the applicable rules of professional conduct. The New York County Lawyer’s Association Opinion 748 (2015), in concluding that the lawyer must exercise control over the entries on the LinkedIn site, stated the following:
“Because LinkedIn gives users control over the entire content of their profiles, including ‘Endorsements’ and ‘Recommendations’ by other users (by allowing an attorney to accept or reject an endorsement or recommendation), we conclude that attorneys are responsible for periodically monitoring the content of their LinkedIn pages at reasonable intervals….”
There have been no Wisconsin opinions or disciplinary actions specifically on this topic; however, the principles expressed in these New York opinions seem logical and appropriate and may very well be applied in Wisconsin. Lawyers must be careful regarding their acceptance of endorsements on a LinkedIn page or another social media site. When the lawyer can exercise control over the content of the page, the lawyer must take reasonable steps to ensure there is no false or misleading information that could constitute a violation of the Supreme Court Rules.
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