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New York & Florida Lawyers May Not Use “Skills & Expertise” on LinkedIn

According to a September 11, 2013 advisory opinion from the Florida Bar, Florida lawyers may not list their areas of practice under the LinkedIn header, “Skills and Experience,” without being board certified in that area.

The opinion arises from Rule 4-7.14(a)(4), which says that a lawyer cannot claim to be “certified” or a “specialist” or “expert” unless certified by the Bar, ABA, or another state bar.

While Rule 4-7.14(b) allows some qualifying language, the Bar wrote, “… it is the staff’s position that providing language in the Linked In profile indicating that you are not board certified and not an expert will not remedy this situation.”

The New York Bar agrees (see Opinion 972).

Will the Bar change its mind?  Will LinkedIn change its wording?  An October 8, 2013 Standing Committee on Advertising meeting is reportedly looking into a similar issue.

Until then, I am deleting all of my Skills & Endorsements with the exception of those which are not practice areas.  For example, I still have skills in, say, public speaking.  And I believe being a certified mediator and/or a qualified arbitrator permits me to list dispute resolution skills.  See here.

Before you panic about the loss of your “endorsements,” it appears that LinkedIn saves them since, after you delete them, they offer ways to retrieve them.

Steps to Remove Skills and Endorsements from LinkedIn:

1.  Log in to LinkedIn and hit “Profile” tab in upper left corner.

2.  Select “edit profile” from the drop down menu.

3.  Scroll down to “Skills and Endorsements” and hit the “edit” button just to the right.

4.  For any “Skill” which is a practice area, hit the “x” and delete it.

5.  Hit the “save” button.  Very important!

6.  Scroll back up.  Under your photo, hit the “done editing” button.

7.  Go view your profile page.

Note: this opinion deals with the “skills.”  It did not get to the issue of “endorsements.”  So hiding your endorsements (as LinkedIn explains here) is irrelevant.

For some background, the Florida advertising rules are here.

 

Judge’s Guide to Social Media

The Fourth District Court of Appeal ruled yesterday that it was grounds for disqualification if a judge was Facebook-friends with the prosecutor.  In Pierre Domville v. State of Florida, a criminal defendant moved to disqualify Judge Andrew Siegel because the prosecutor was one of the judge’s friends on Facebook.  The Court relied upon Judicial Ethics Advisory Committee Opinion 2009-20, which notes that such public display of connection creates the appearance of impropriety.

So what is a judge to do?  The quick-and-clean option is to de-activate all social media accounts.  That may not be desirable.  The more reasonable option is to revisit social media accounts and determine if they can be open to anyone so that there is no acceptance or rejection of contacts.  Ironically, Facebook (like Twitter) has a fairly easy solution: open a fan page so that anyone can follow you (obviously, the content on an open fan page is likely a bit less personal than what you might share in your circle of Facebook friends).  Contact your current Facebook friends explaining that anyone who might reasonably appear in front of you is going to be de-friended (no offense).  Leave the “private” Facebook account for personal and family contacts who will not appear before you.

UPDATED (9/15/12): Daily Business Review’s “Judges React to Fourth DCA Opinion Over Facebook Friendships.”

 

New York City Bar Opion 2012-2 – “Inadvertent” Social Media Contact May Violate Rules

The practice of using search engines and social media to research jurors has existed for several years (arising about the time we stopped using the phrase, “Web 2.0″).  In 2009, I wrote a “how to guide” explaining to lawyers how to use social media to research jurors — in a mere three years, while the concept remains sound, most of the instructions have become outdated.  That’s fine and, in fact, the steps lawyers use currently to research jurors are actually simplified since Google, Facebook, Twitter, docket searches, and a few other sites have lead to “one stop shopping” results.  But it is worth noting how much the technology has changed in three years.

Since that time, however, there has been a wave of ethical opinions around the country explaining that, even on the internet, there can be no direct contact with jurors.  You cannot ask a paralegal to Facebook-friend a potential juror.  Judges can’t Facebook-friend lawyers but lawyers apparently can friend JA’s (not recommended).  In short, a lawyer cannot do on the internet what he or she cannot do in the real world.

The New York City Bar, however, recently threw cold water on the discussion by issuing Opinion 2012-2 suggesting that “attorneys may not research jurors [on the internet] if the results of the research is that the juror will receive a communication.”  The Bar went on to state that, even if the lawyer is unaware that the juror might get a notification, this “might run afoul” of the ethical rules.  Incidentally, their Rule 3.5(a) is quite similar to Florida’s 4-3.5(d)(1)-(2).  Again, like other Bars, there is an admonishment that using third parties, like paralegals, does not cure the problem and, indeed, may be a violation itself.

At first blush, this interpretation of the “no communication” rule seems to be well-founded as a hard and fast rule with clear boundaries.  For example, this prohibits Facebook-friend requests (which has been covered in other bar opinions) and, even though the Opinion does not specifically reference it, this Opinion appears to prohibit “following” a juror on Twitter since the person could see that the lawyer has started to monitor his or her posts.  Again, not mentioned in the Opinion, this could also cover LinkedIn, which provides a (paying) user with the ability to see who viewed their bio.  The Opinion tasks lawyers with researching social media policies before using them in order to avoid this “communication.”

However, by you reading this post on my website, I have gathered information about you.  Nothing serious.  And nothing more than any other site would gather.  In fact, I’d have to log in to my web hosting service to see details about the site traffic.  But with some technical doing, I suppose I could determine that the IP address of a particular reader belongs to a law firm.  In short, a tech-minded juror might know that your law firm visited his or her blog, let’s say.  That scenario may be a stretch — by 2012 standards — but not a long stretch and, as we’ve seen in three short years, the technology will likely change.  So, when the Opinion says “search engine websites may be used freely for juror research because there are no interactive functions that could allow jurors to learn of the attorney’s research or actions” — that’s not entirely true nor is that a definitive policy ground which is likely to serve the test of time.

The Opinion rests upon the premise that, by  researching jurors online, lawyers could discourage jury service “by the knowledge that attorneys and judges can and will conduct active research on them or learn of their online — albeit public — social lives.”  That policy is stated without empirical evidence and, indeed, we’ve certainly come to recognize that jurors are researching us.  Perhaps jurors care that lawyers are researching them.  Perhaps they don’t.  It would be an interesting study to see how jurors react to the idea that they are being investigated beyond voir dire.  One might guess, contrary to the NYC Bar, that jurors might expect that lawyers, like everyone else, are turning to the internet.

For a fairly up-to-date “social media ethics quiz,” take a look at this post and powerpoint.

For discussion of NYCB’s new opinion, check their blog.

Thanks to the ABA for the heads up (“Ethics Opinion Warns Lawyers About Perils of Unintentional Juror Contact During Online Research“).

Can a Lawyer Respond to an Opposing Party Email?

A defendant in a personal injury suit lost in arbitration and her lawyer sought trial de novo.  The defendant sent an email to plaintiff’s counsel stating that she, as the party, did not want a trial and complained that her counsel and insurance carrier were continuing to defend the case.

What steps should a lawyer take when receiving such an email?

The relevant rule in Florida is Rule of Professional Conduct 4-4.2 (Communications With Persons Represented by Counsel): “…a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter [unless the other lawyer consents.”  In Florida, the Rule applies “even though the represented person initiates or consents to the communication” (see Rule Comments).

The facts described above occurred in Denise Engstrom v. Rebecca Harsten Goodman et al.  Washington State’s rule 4.2 appears similar, if not identical, to the Florida rule.  The court held that the lawyer should not have continued communications with the party (which included several steps of further communication, including getting the defendant to sign an affidavit).  The court held the appropriate steps would be to cease communication as well as advise opposing counsel and/or inform the court.

Florida lawyers are reminded that the Rules of Conduct are always available online at FloridaBar.org (more specifically, here) and also available in a free iTunes app (link, here).

Paralegal Ethics, the Internet & Social Networking Sites

Special thanks to the Paralegal Association of Florida for the invitation to speak at the Boca Raton Chapter’s 5th Annual Ethics Seminar.

We discussed paralegal ethics relating to the use of social media (especially Facebook) for research as well as ethics relating to assisting lawyers with jury selection by using the internet.

A copy of the powerpoint is here (also along right column of this page under “materials”).