OMG, an Ethics Opinion that Actually Gets the Law Right on Advertising and Online Profiles!

Thanks, New York City Bar Association, for this comprehensive opinion concluding that most attorney uses of LinkedIn are not “attorney advertising” and thus not subject to the attorney advertising rules.

How so? Because, as the opinion notes:

An attorney’s individual LinkedIn profile or other content constitutes attorney advertising only if it meets all five of the following criteria: (a) it is a communication made by or on behalf of the lawyer; (b) the primary purpose of the LinkedIn content is to attract new clients to retain the lawyer for pecuniary gain; (c) the LinkedIn content relates to the legal services offered by the lawyer; (d) the LinkedIn content is intended to be viewed by potential new clients; and (e) the LinkedIn content does not fall within any recognized exception to the definition of attorney advertising.

These parameters are drawn from the definition of “advertisement” in New York RPC 1.0(a). That rule is in turn surely informed by the Supreme Court’s commercial speech doctrine, which only permits regulation such as that found in the attorney advertising rules when applied to communications that are narrowly commercial in nature.

And of course, as the opinion notes, a LinkedIn profile doesn’t meet the definition above:

Given the numerous ways that lawyers use LinkedIn, it should not be presumed that the primary purpose an attorney’s LinkedIn content is to attract new clients for pecuniary gain, unless it contains express language or other equally compelling evidence to support that conclusion.

The line between commercial and non-commercial speech isn’t always clear, but I’ve long argued that the concept draws in a lot less communication than many lawyers believe. It’s great to see a bar association agree with this approach.

Oh, and the New York City Bar’s conclusion with respect to LinkedIn? Same would go for Avvo profiles.

h/t Above The Law

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