Digital media companies are constantly experimenting with new features and new ways of displaying the content on their pages. As these format changes aren’t done with the peculiarities of attorney advertising regulation in mind, they sometimes cause a fair bit of lawyerly agita.
Consider LinkedIn. First it enabled a system of “endorsements,” raising howls of protest about perceived violations of rules restricting testimonial advertising. More recently, LinkedIn has experimented with areas in its profiles where users can indicate areas of “specialty” or “expertise.”
Horror of horrors! The use of words like “specialty” or “expertise” to describe the focus of a lawyer’s practice is forbidden in a number of states, including Florida and New York.
Now, it may well be permissible for states to require mandatory disclaimers when attorneys advertise that they are “certified specialists” (see the disclaimer section). Indeed, the ABA Model Rule on this count – 7.4 – is limited to advertisements that indicate official, third-party certification. [ref]ABA Model Rule 7.4(d) provides “A lawyer shall not state or imply that a lawyer is certified as a specialist in a particular field of law, unless [the lawyer IS certified as a specialist by an appropriate organization].”[/ref]
But the words “specialty” and “expertise” themselves? It’s hard to see how a Bar could permissibly prohibit the use of such general terms in circumstances where there’s no implication of official certification. Saying that one practices in a given “specialty”, or has “expertise” in a given area, is not analogous to saying one is a “certified specialist.”
[Updated, 2016: Apparently it’s not THAT hard to see how a Bar can prohibit the use of this term, at least in Louisiana. Two federal courts in the Southeast have recently addressed this issue and arrived at opposite conclusions. In Florida, the court looked askance at the restriction on claiming specialization, finding the bar’s supposition that the restriction was necessary both “unsupported” and “unintuitive.” Searcy v. Florida Bar, 140 F. Supp. 3d 1290 (N.D. Fla. 2015). But in a very poorly-reasoned decision – a statement from the ABA Board of Specialization counts as “empirical evidence?” – a district court judge in Louisiana found that the offending terms could be prohibited in the absence of certification. See Loughlin v. Tweed, 310 F.R.D. 323 (E.D. La. 2015).]
And that’s before you get to the third-party issues. The use of such terms in descriptive headings created by a directory or site provider? Unless done so at the request of the attorney (clearly not the case for LinkedIn), such terms cannot be found to be the responsibility of the attorney.[ref]This is due to what I like to call “the law that makes the internet go” – 47 U.S.C. § 230. “CDA 230”, as it’s known, provides (in subsection (c)(1)) that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” And it preempts any state law law that might be applied to the contrary.[/ref]
I realize not everyone wants to be the test case for the constitutionality of their state’s bar rules – or their preemption by a federal law designed to make the internet flourish. And while I firmly believe this is an area where attorneys have nothing to worry about, keep this in mind: most profile sites, including LinkedIn, provide a fair bit of customization regarding what information appears. On LinkedIn, attorneys can choose whether endorsements appear or not, and they can choose whether items appear in the section labeled “Skills and Expertise.”
For those taking an uber-cautious approach, removing those items is an option short of abandoning LinkedIn entirely.[ref]Note that – despite the suggestion by the Florida Bar and others – the existence of this sort of “negative control” is not relevant to the CDA 230 analysis. Attorneys don’t become publishers just because they have the ability to take down content posted by a third party.[/ref]