Ethical Pitfalls For Lawyers Using LinkedIn

With one out of three professionals subscribing and 347 million members worldwide, LinkedIn has undoubtedly become the prevailing business person’s social network.  As more and more attorneys utilize LinkedIn as their go-to social media platform for advertising and research, the likelihood of inadvertent communications which trigger ethical breaches will also rise. 

Attorneys who use social media have a professional and ethical obligation to understand how such platforms work.  Inadvertent ethical breaches can often occur simply as a result of a social media’s default settings which, often times, an attorney is unaware of, or has no control over.  This especially rings true with LinkedIn, which aims to capitalize on its professional member’s sharing and transparency to attract new users and ultimately boost revenues. 

Unlike typical forms of social media, attorneys using LinkedIn must be aware of the potential risks associated with viewing member’s profiles and inviting other to “connect.”  LinkedIn’s unique network and notification settings serve as a friendly reminder that attorneys must understand a social media’s functionality prior to use. 

“I Just Accidentally Added A Represented Party”

Rule of Professional conduct 2-100 regulates attorney communications by stating: “(A) While representing a client, a member shall not communicate directly or indirectly about the subject of the representation with a party the member knows to be represented by another lawyer in the matter, unless the member has the consent of the other lawyer.”  In a recent San Diego County Bar Ethics Opinion (No, 2011-2), it was held that such requests made to a represented party, are at the very least, an indirect ex parte communication.  To ultimately determine whether such communications were violative of Rule 2-100, the ethics committee considered the context in which the communication was made, examining whether the request was a communication “about the subject of the representation.”  This in turn was determined by investigating the attorney’s motives in the quest for such information.  If the attorney’s communication was found to be motivated by a search for information about the represented party, then they would be found in violation of Rule 2-100. 

Given LinkedIn’s specific marketing towards professionals, the ease by which a user can accidentally send out requests to connect is cause for concern.  By clicking the “connections” tab at the top of the screen, LinkedIn automatically uploads all of a user’s email contacts and checks each box.  Then, with a single click of a button, a user can unassumingly send a connection request to each individual LinkedIn member within his or her address book. 

In accidentally adding represented parties, lies the potential for future attorney ethics decisions.  For instance, whether such blanket requests to add represented parties would be in violation of Rule 2-100 could boil down to whether such requests are perceived as motivated by an attempt to obtain information regarding the represented party for use in litigation.  Attorneys using LinkedIn should be leery of the ease by which they can unintentionally engage with a represented party, and the potential implications of such behavior.    

 “LinkedIn Let’s Everyone Know I Looked At Their Profile”

Attorneys conducting research via social media must take the time to gain familiarity with the features of the platforms being used.  For instance, a LinkedIn profile contains a wealth of useful information including an individual’s current and past employers, educational background, test scores, contacts, and organizations which they belong.  What many attorneys do not know however, is that by viewing an individual’s profile, the user generates a notification to the individual, disclosing that their profile has been viewed.  If such a notification is triggered by an attorney’s research into a represented party, it would be classified as an indirect ex parte communication in violation of Rule 2-100 because it reports to the represented party, that he or she has been researched.

Particularly with respect to LinkedIn, attorneys should be mindful that “privacy settings” can be manipulated, so as to disable other’s ability to see who has viewed their profile.  To do this, a user must log in and go to “account settings” which is on the top right corner of the screen.  From there, they must click on a “privacy & settings” tab, and then the link for “select what others see when you’ve viewed their profile.”  Next, a pop-up window will appear which allows the account-holder to modify their profile so as to provide for one of three “view” settings.  These settings allow for 1) the user to remain completely anonymous, 2) a medium setting where the viewer’s industry and title (but not name) is displayed, or 3) LinkedIn’s default setting which provides the viewer’s name and headline. 

 Conclusion

Attorneys must take the time, carefully explore, and where available, customize each social media platform before integration into their own practice and business strategy.  Also, social media platforms regularly change their privacy features so as to better fit the needs of their users.  Thus, checking every so often to see how you look to others is recommended.  Doing all this will help protect you in avoiding professional malpractice and other ethical pitfalls.