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LinkedIn or linked out? The ethics of endorsements

LinkedIn, the social network of choice for lawyers and other mature individuals everywhere, offers two major endorsement options to users. The first is a written endorsement, where one user will compose a testimonial about another user (either of their own volition, or at the other user's request); once the testimonial is complete and has been submitted to the other user, it's then up to the recipient as to whether she will publish it to her profile. The other is a +1-style feature, where users can click on skills of yours (those you assign yourself, and those LinkedIn determines you also have, following a reading of your profile), to indicate that, yes, you do have such skills, plied with some degree of competence.

Your stats are arrayed at the base of your profile page in this regard, organized in order of how many other users believe that you have skills in particular areas. You'll know this feature because LinkedIn will prompt you to endorse other users each time you log into your account, and view your profile. You'll also get a notification each time someone endorses you, via either method.

But, this is all replete with potential ethics problems for lawyers, right? Well, of course it is.

There's an interesting discussion of the ethical implications of these endorsements at the Legal Ethics Forum, here. The post is made by someone in the know, Andy Perlman, Suffolk University Law School professor and ABA Commission Ethics 20/20 reporter. In addition to Perlman's post, the discussion via the comments is interesting, as well, including the give-and-take between Perlman and Avvo general counsel Josh King.

Perlman outlines a number of the ethics questions attached to LinkedIn recommendations of lawyers -- more than I will relay here. Now, most of these ethics question, as ethics questions often do, spin out into a variety of hypotheticals. But, in the main, these considerations emanate from Rule 7.1 (advertising shall not be false or misleading) and Rule 7.4 (respecting communications of practice areas and specialization). If someone endorses a skill you do not have, does that represent a false or misleading advertisement? Does it represent the advertisement of a specialty without the appropriate certification, or language respecting the same?

To add to the pot, there are specific differences between the American Bar Association Model Rules 7.1 and 7.4 and the Massachusetts Rules of Professional Conduct (7.1 and 7.4). The ABA Rule 7.1 clearly and specifically addresses endorsements at Comment 3. The Massachusetts rules spread that discussion across comments to Rules 7.1 and 7.2, and evince a greater concern for the sort of advertising media leveraged, though LinkedIn is not specifically addressed. The ABA and Massachusetts Rules 7.4 are substantially similar; but, the Massachusetts rule applies a malpractice standard to holding out for specific practice areas, which makes the LinkedIn endorsement issue even more of a potential minefield in this State. (Though, that standard is set to be eliminated with the coming revision to the commonwealth's ethics code.)

Given the foregoing, I generally see two equal and opposite reactions to the potential ethics concerns over the two types of LinkedIn endorsements. Some lawyers will stay off the site altogether; some lawyers will just let the endorsements ride them, approving of (implicitly) anything and everything that comes in. As is often the case, there is a more sensible, middle course. Remember that you do control this aspect of your profile. You cannot approve/publish endorsements. You can send endorsers template endorsements, to help them to draft something, and to suggest a pattern that would meet your ethical obligations. You can remove skills from your profile that do not reflect your actual skills, including all of them.

Certainly, none of that is a magic elixir for avoiding a potential ethics investigation related to your usage of LinkedIn; but, it does increase your ability to manage your own fortune, and to, at least, settle up with your interpretation of the ethics rules. Surely that's better than avoiding a potentially effective advertising medium altogether. In the end, though, this is a matter of risk tolerance. While most lawyers' bars for risk tolerance are set fairly low, there are variations in those settings. As with anything else in life, there are choices to make, beds to make and to lie in. But, if a reasonable approach is your touchstone, and you take care to manage what others wish to publish about you when you can do so, you're more likely to be on the right side of the fence, rather than the wrong.

Tip courtesy of Jared Correia, Law Office Management Assistance Program.

Published October 31, 2013

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