Recently, a number of my LinkedIn contacts have offered to “endorse” my skills or knowledge in certain areas, such as “legal research,” “legal writing,” or “courts.” (This is a relatively new LinkedIn feature.) Of course, I am grateful for the offers to “endorse” me, but I do have some ethics-related questions about accepting them.
Consider that, if I accept these endorsements, they will be added to my LinkedIn profile and visible to hundreds of my contacts to see. I believe that I can configure my profile in such a way that these endorsements are visible to the general public, but assume for now that they are visible only to my contacts, which include former students, professional colleagues, and friends.
My first question is whether these endorsements are subject to the rules of professional conduct. It seems to me that they are, given that they are “communications concerning a lawyer’s [i.e., my] services.” They will be seen by many professional colleagues, some of whom have worked with me or might want to use my services in the future.
Assuming I’m right that these endorsements need to comply with the rules of professional conduct, let’s imagine that someone offers to endorse me who has no basis for assessing my skills in a particular area. Perhaps the endorser is a friend who has never worked with me. Or imagine that someone offers to endorse my skills or knowledge in an area I know very little about. For example, one of my contacts offered to endorse me in the area of “International Law,” even though I know very little about the subject. If I accept endorsements of this sort (i.e., endorsements from people who have not worked with me or endorsements of skills/knowledge I don’t have), it seems to me that my acceptance of the endorsement and making it visible to my contacts would be misleading and violate Rule 7.1. Does anyone disagree?
Second, assume for the sake of argument that someone actually knows my professional abilities, because (for example) the person has worked with me. Also assume that I believe that I have the skills or knowledge my contact wants to endorse (say, legal research or courts). I think it would be ethically permissible for me to accept this endorsement, at least under the Model Rules, but depending on the circumstances, it might be a problem in some jurisdictions, which expressly regulate endorsements by clients as well as paid testimonials. (See here and search the word “endorse” or "testimonial.")
Another possible problem is if I offer to endorse someone only if that person endorses me or if I accept an endorsement on the condition that I offer a reciprocal endorsement. It seems to me that these arrangements could be viewed as offers to give “something of value” (i.e., an endorsement) in exchange for a “recommendation,” potentially violating Rule 7.2(b).
Reactions?
I think it's important, as you suggest, that when doing a recommendation you truly believe in the specific recommendation. For example, I have recommended some PR profs for their expertise in that field, but have tried not to recommend them in fields I know nothing about.
Posted by: John Steele | January 03, 2013 at 12:40 PM
I agree, John, though I was thinking more about the ethics issues for the endorsee and less so about the ethics issues for the endorser. It seems totally appropriate for you to endorse people you know if you think their skills are worth endorsing.
Posted by: Andrew Perlman | January 03, 2013 at 12:45 PM
The "International Law" example is counter-factual. People can only endorse you on LinkedIn for things you've claimed expertise in. If you've done so for International Law despite not knowing anything about it, you've got bigger problems.
What's more, any extension of testimonial advertising restrictions to third-party reviews or endorsements is 100% preempted by 47 USC 230. Under CDA 230, attorneys cannot be liable for comments posted by third parties (assuming those third parties haven't been employed by the attorney, of course).
And that's to say nothing of the fact that no meaningful restriction on third party reviews for lawyers could survive constitutional scrutiny anyway.
I realize not every attorney wants to be a test case for the stupidity of their state's attorney advertising regulations, but no one should lose sleep over LinkedIn endorsements.
Posted by: Joshuamking | January 04, 2013 at 01:19 AM
I'm unclear why you consider this to violate Rule 7.1. I thought that rule only applied to statements made by the lawyer about their own skills, rather than statements made by third parties. Plus, I'm not sure an endorsement can reach the level of "material misrepresentation."
I am now wondering, as a California lawyer, whether I need to somehow add a disclaimer to that endorsement page. I may ask in-house counsel at LinkedIn about that, given that they are also in California.
Also, Joshua, people can endorse you for skills you did not mention. It's just that before those skills are added to the visible list on your profile, you must approve them. I've had a couple of people endorse me for something that I consider sufficiently ambiguous that I do not want it on my profile ("prosecution" which to me and most lay readers would mean DA, rather than patent attorney.)
Posted by: Judith_IP | January 04, 2013 at 01:38 AM
Judith,
As you note, the lawyer has the option whether to list the endorsement. In my view, when the lawyer affirmatively decides to list an endorsement on her LinkedIn profile, it becomes a "communication about the lawyer's services" and is subject to regulation under 7.1. It seems no different to me than posting a testimonial on the lawyer's own website. In this sense, it's quite different from a pure third party review of the sort that Josh King describes above. (And Josh, as Judith notes, you can receive endorsements on LinkedIn on subjects that are completely unrelated to your profile or the work you do.)
Posted by: Andrew Perlman | January 04, 2013 at 01:50 AM
Thanks for the clarification, Andrew. That makes sense.
I ended up posting about this on my blog. http://blog.hiplegal.com/2013/01/linkedin/
Posted by: Judith_IP | January 04, 2013 at 05:32 AM
Let's take the case then where the attorney has listed skills and third parties add endorsements for one or more of those listed skills. I wouldn't see that as being any different than any other third party review for the purposes of CDA 230.
And in any event, so long as the skills are things the attorney legitimately possesses, I don't see how any attempt by a bar to limit attorney use of LinkedIn endorsements could survive first amendment scrutiny.
Posted by: Joshuamking | January 04, 2013 at 09:54 AM
Josh,
In general, I don't see any problem with a lawyer accepting an endorsement that reflects the lawyer's actual skills (e.g., a client testimonial that is truthful and not misleading).
That said, let's assume the endorser knows nothing about the lawyer's skills. (Perhaps the endorser is a friend who has never used the lawyer's services.) And let's also assume that the lawyer knows that the endorser lacks this knowledge, but the lawyer nevertheless accepts the endorsement and makes it visible on her LinkedIn profile. Isn't the lawyer now responsible for a misleading communication about the lawyer's services? In other words, the lawyer is communicating to the public that a particular person believes the lawyer is skilled in a particular area even though the lawyer knows that the person has no basis for the assessment.
Change the facts slightly. Imagine that a lawyer has her own website and asks friends to write short sentences about the lawyer that are posted on the website. Maybe the friends say things like, "Laura is an extremely talented lawyer who really does a great job with legal research." If the friends don't have any basis for knowing how good the lawyer is, isn't the communication misleading? This is not a client testimonial. It's a testimonial from people who have no basis for assessing the lawyer's skills. Do you think such statements on a lawyer's own website should be permissible? If not, what's the difference between that and accepting LinkedIn endorsements from people who don't know the lawyer's skills?
Posted by: Andrew Perlman | January 04, 2013 at 10:25 AM
Agreed that there is no problem with a lawyer accepting an endorsement that reflect their skills. But assuming the endorsement has to do with those skills, I don't see why lawyers would need to concern themselves at all with the reviewer's level of familiarity with those skills.
As for your website hypo, the only issue is the lawyer asking friends (not clients) to leave testimonials. But if we change your facts slightly again so that the lawyer isn't affirmatively asking non-clients to leave reviews, CDA 230 would again come into play. Not that I think many attorneys would tolerate the risks of such an open forum on their own websites . . .
Posted by: Joshuamking | January 04, 2013 at 05:36 PM
I was interviewed by the Illinois State Bar Association on ethics issues relating to endorsements. It is available here: http://www.isba.org/ibj/2013/01/lawpulse/lawyersandlinkedinendorsementsproce.
Interesting side questions:
(1) is it okay to endorse a judge? Several judges, particularly some newer to the bench, have areas of expertise listed on their LinkedIn profiles.
(2) if someone becomes a judge after being endorsed, should they remove endorsements of lawyers likely to appear before them?
(3) what should a lawyer do if a judge (before whom the lawyer or lawyer's firm practices) endorses the lawyer? Yes, this happened recently, too -- to one of my colleagues.
Mike Downey
Posted by: Michael Downey | January 06, 2013 at 03:27 PM
I have recently explored the new feature for endorsement of skills. I have discovered two important points. They are (1) confirmation of your skill endorsements and (2) how your list of skills is generated.
Confirmation of your skills:
When a contact does endorse your skills, then LinkedIn sends a message to prompt you to confirm that the information is correct. From an ethical standpoint, you are in control of your own endorsements. The same is true for personal recommendations that your contacts may provide.
How your list of skills is generated:
LinkedIn pulls information from your profile to create an initial list of skills which it then asks your contacts to endorse. If your contacts actually go in to visit your profile, LinkedIn then posts a list of your skills at the top of the page and asks the viewer (your contact) to endorse some or all of the skills that are listed. At that point, the viewer / your contact is also able to type in additional skills that you may have.
I begin my Professional Responsibility class at Golden Gate University School of Law tomorrow and it's going to be fun!
Posted by: Catherine Rucker | January 07, 2013 at 02:05 AM
Related - whether third party comments/endorsements can violate state bar rules as to specialty self-billing.
Posted by: Trotsky | January 10, 2013 at 11:45 AM