Question

I have decided to become more active on LinkedIn and use that site to make business contacts. Are my LinkedIn postings subject to the Rules of Professional Conduct?

Answer

Many questions are being raised regarding the use of LinkedIn as a business-generation activity or merely as a business-connections resource. In June 2010, I wrote an article for the Wisconsin Lawyer indicating that lawyers must be cautious about what they post to a LinkedIn page because Wisconsin has a very specific advertising rule (SCR 20:7.1), which provides that a lawyer may not communicate any information that is “false or misleading.” Recent opinions from other states have provided additional guidance on whether the use of a LinkedIn site by a lawyer is subject to the lawyer advertising rules.

In a recent opinion from the Committee on Professional Ethics of the New York City Bar Association, the committee stated that a LinkedIn profile would constitute attorney advertising only if it met the following criteria:

1) It is a communication made by or on behalf of the lawyer.

2) The primary purpose of the LinkedIn content is to attract new clients to retain the lawyer for pecuniary gain.

3) The content relates to the legal services offered by the lawyer.

4) The content is intended to be viewed by potential new clients.

5) The content does not fall within any recognized exception to the definition of “attorney advertising.”

The committee said that it should not be presumed that a lawyer who posts information about himself or herself on a LinkedIn page is necessarily doing so for the primary purpose of attracting new clients and that “the ‘primary purpose’ standard refers to the subjective intent of the lawyer who makes the communication, but … this intent may be inferred – at least in certain circumstances – from other factors including the content of the communication and the audience for the communication.”

The committee then suggested that a lawyer may use a LinkedIn page for other purposes such as networking with current or former clients or networking with people who have similar interests and that in those situations, the primary purpose for the LinkedIn page is not specifically or exclusively to provide a resource for new business generation.

Lawyers should think about the Rules of Professional Conduct and their requirements when posting things to their LinkedIn pages to avoid running afoul of the lawyer-advertising requirements.

This analysis by the committee of the New York City Bar is a very subjective analysis and of course, is not binding on considerations of compliance with the Wisconsin Rules of Professional Conduct. It does provide one analysis in significant detail about the use of LinkedIn as an advertising source for lawyers. See http://tinyurl.com/h9ck2kb.

There is no definitive answer in Wisconsin whether the content of a LinkedIn page would be considered advertising and subject to SCR 20:7.1 of the Wisconsin Rules of Professional Conduct. Some of the content typically includes recommendations from other people regarding experience or skills in particular areas; these recommendations could be construed as endorsements or communications about services that the lawyer could provide to a client. Lawyers should think about the Rules of Professional Conduct and their requirements when posting things to their LinkedIn pages to avoid running afoul of the lawyer-advertising requirements.