Byte of Prevention Blog

by Jay Reeves |

State Bar Considers Ethics of LinkedIn

LinkedIn is a powerful networking tool.LinkedIn Logo

Through it, you can connect with State Bar certified specialists. You can get to know the Forsyth County Clerk of Superior Court. You can find out what’s happening at the Mecklenburg County Bar.

You can network with colleagues from Benson to Black Mountain.

But what about linking up with judges? What is the boundary between permissible activity and improper ex parte contact?

Proposed 2014 Formal Ethics Opinion 8

This ethics proposal – released on October 23 – provides the most comprehensive analysis of LinkedIn ethics to date. Here is the proposed opinion in its entirety:

Facts: Lawyer has a profile listing on LinkedIn, a social networking website for people in professional occupations. The website allows registered users (“members”) to maintain a list of contact details on their LinkedIn pages for people with whom they have some level of relationship via the website. These contacts are called “connections.” Members can invite anyone (whether a site user or not) to become a connection.

LinkedIn can be used to list jobs and search for job candidates, to find employment, and to seek out business opportunities. Members can view the connections of other members, post their photographs, and view the photos of other members. Members can post comments on another member’s profile page. Members can also endorse or write recommendations for other members. Such endorsements or recommendations, if accepted by the recipient, are posted on the recipient’s profile listing.

Inquiry #1: May a lawyer with a professional profile on LinkedIn accept an invitation to connect from a judge?

Opinion #1: Yes. Interactions with judges using social media are evaluated in the same manner as personal interactions with a judge, such as an invitation to dinner. In certain scenarios, a lawyer may accept a judge’s dinner invitation. Similarly, in certain scenarios, a lawyer may accept a LinkedIn invitation to connect from a judge. However, if a lawyer represents clients in proceedings before a judge, the lawyer is subject to the following duties: to avoid conduct prejudicial to the administration of justice; to not state or imply an ability to influence improperly a government agency or official; and to avoid ex parte communications with a judge regarding a legal matter or issue the judge is considering. See Rule 3.5 and Rule 8.4. These duties may require the lawyer to decline a judge’s invitation to connect on LinkedIn.

Rule 8.4(d) provides that it is professional misconduct for a lawyer to “engage in conduct that is prejudicial to the administration of justice.” Rule 8.4(e) provides that it is professional misconduct for a lawyer to “state or imply an ability to influence improperly a government agency or official.” Lawyers have an obligation to protect the integrity of the judicial system and to avoid creating an appearance of judicial partiality. See 2005 FEO 1.

If a lawyer receives an invitation to connect from a judge during the pendency of a matter before the judge, and the lawyer concludes that accepting the invitation will impair the lawyer’s compliance with these duties, the lawyer should not accept the judge’s invitation to connect until the matter is concluded. The lawyer may communicate to the judge the reason the lawyer did not accept the judge’s invitation. Such a communication with the judge is not a prohibited ex parte communication provided the communication does not include a discussion of the underlying legal matter.

Rule 3.5 prohibits lawyers from engaging in ex parte communications with a judge. Because connected members can post comments on each other’s profile pages, the connection between a judge and a lawyer appearing in a matter before the judge could lead to improper ex parte communications. Therefore, while the lawyer has a matter pending before a judge, the lawyer may not use LinkedIn or any other form of social media to communicate with the judge about the pending matter.

Rule 8.4(f) provides that it is professional misconduct for a lawyer to “knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.” To the extent that a judge is prohibited by the North Carolina Code of Judicial Conduct from participating in LinkedIn, or from sending invitations to connect to lawyers, a lawyer may not assist the judge in violating such prohibitions.

Sending a LinkedIn Invitation to a Judge

Inquiry #2: May the lawyer send an invitation to connect to a judge?

Opinion #2: Yes, subject to the limitations described in Opinion #1.

Endorsing  a Judge’s “Skills and Expertise”

Inquiry #3: A LinkedIn member has the option of displaying a “skills & expertise” section within his profile. A member can add items to the “skills & expertise” section of his profile page. In addition, some connections can add a new item to another member’s “skills & expertise” section, can “endorse” a skill or expertise already listed for the member, or write a recommendation for the member. A member who is being endorsed by another member will receive a notification containing the identity of the endorser and the specific skill or expertise that is being endorsed. The member may decline the endorsement entirely or choose the specific endorsements to be displayed. The endorsed member may also subsequently edit the “skills & expertise” section to “hide” selected endorsements. If a member endorses another member, and the endorsement is not declined by the recipient, the endorser’s name and profile picture will appear next to the skill on the endorsed member’s profile.

A recommendation is a comment written by a LinkedIn member to recognize or commend another member. When someone recommends a member, the recommended member will receive a message in the recommended member’s LinkedIn inbox and a notification on the member’s “Manage Recommendations” page. Recommendations are only visible to connections. A member can choose to hide a recommendation from the member’s profile but cannot delete it. Recommendations written for others can be withdrawn or revised.

May a lawyer endorse a judge’s legal skills or expertise or write a recommendation on the judge’s profile page?

Opinion #3: Yes, subject to the limitations explained in Opinion #1.

Accepting a Judge’s Endorsement of Your “Skills and Expertise”

Inquiry #4: May a lawyer accept an endorsement or recommendation from a judge and display the endorsement or recommendation on his profile page?

Opinion #4: No. Displaying an endorsement or recommendation from a judge on a lawyer’s profile page would create the appearance of judicial partiality and the lawyer must decline. See Rule 8.4(e).

Posting Other Endorsements and Recommendations

Inquiry #5: May a lawyer accept and post endorsements and recommendations on his LinkedIn profile page from persons other than judges?

Opinion #5: Lawyers are professionally obligated to ensure that communications about the lawyer or the lawyer’s services are not false or misleading. See Rule 7.1(a). Provided that the content of the endorsement or recommendation is truthful and not misleading in compliance with the requirements of Rule 7.1, the lawyer may post endorsements and recommendations from persons other than judges on the lawyer’s LinkedIn profile page. See 2012 FEO 8.

Removing an Endorsement or Recommendation

Inquiry #6: Lawyer A previously accepted and displayed on his LinkedIn profile page an endorsement or recommendation from Lawyer B, who subsequently became a judge. Is Lawyer A required to remove Lawyer B’s endorsement or recommendation?

Opinion #6: Yes, if Lawyer A knows, or reasonably should know, that Lawyer B has become a judge. See Opinion #4.

Application to Facebook and Twitter

Inquiry #7: Do the holdings in this opinion apply to other social media applications such as Facebook, Twitter, Google+, Instagram, and MySpace?

Opinion #7: The holdings apply to any social media application that allows public display of connections, endorsements, or recommendations between lawyers and judges.

Sources:

Jay Reeves a/k/a The Risk Man has practiced law in North Carolina and South Carolina. Formerly he was Legal Editor at Lawyers Weekly and Risk Manager at Lawyers Mutual. Contact him at 919-619-2441 or jay.reeves@ymail.com.

About the Author

Jay Reeves

jay.reeves@ymail.com | 919-619-2441

Jay Reeves practiced law in North Carolina and South Carolina. Over the course of his 35-year career he was a solo practitioner, corporate lawyer, legal editor, Legal Aid staff attorney and insurance risk manager. Today he helps lawyers and firms put more mojo in their practice through marketing, work-life balance and reclaiming passion for what they do. He is available for consultations, retreats and presentations.

Read More by Jay >

Subscribe to Our Blog

Related Posts