||2014||RPC 5.3(c)(1), 7.1, 7.2, 7.2(b), 7.2(b)(1), 7.4, 7.4(a), 8.4(a)||
Participation in online social media profile websites
Lawyer claims her “profile” on a social media website that is designed to provide personal and professional information about lawyers to nonlawyers and other lawyers. The website permits lawyers to post, inter alia, their contact information, education, practice areas, experience, and articles. It is not possible for Lawyer to disclaim her profile after claiming it.
The website also generates a numeric and descriptive rating for each lawyer who claims his or her profile, as well as for some lawyers who have not claimed their profiles. The numeric and descriptive rating are affected, at least in part, by the amount of information that a lawyer provides and the lawyer’s participation on the website. The website does not disclose how it determines the numeric and descriptive rating. It is possible for a less experienced lawyer to obtain a much higher rating than a much more experienced lawyer by simply providing more information about the lawyer’s practice.
Enrolled lawyers can also attach specific “peer endorsements” to another lawyer’s profile. Visitors to the website can also attach publicly viewable “client ratings” to a lawyer’s profile. Peer endorsements affect the rating, but client ratings do not.
1. May Lawyer claim the profile and provide personal and professional information, knowing that the website will generate a publicly viewable numeric and descriptive rating that is, at least in part, influenced by the amount of information that Lawyer provides?
2. May Lawyer claim the profile and participate in the website if other users attach to Lawyer’s profile publicly viewable (1) client ratings or (2) peer endorsements about Lawyer’s services?
3. May Lawyer endorse another lawyer in exchange for a reciprocal endorsement?
1. See discussion below.
2. See discussion below.
1. Lawyers are permitted to publicly disseminate a variety of types of information, including but not limited to the following:
information concerning a lawyer’s name or firm name, address and telephone number; the kinds of services the lawyer will undertake; the basis on which the lawyer’s fees are determined, including prices for specific services and payment and credit arrangements; a lawyer’s foreign language ability; names of references and, with their consent, names of clients regularly represented; and other information that might invite the attention of those seeking legal assistance.
RPC 7.2 cmt. 2; see also ABA Formal Op. 10-457 (2010). A lawyer may also pay the reasonable cost of advertisements or permitted communications. RPC 7.2(b)(1).[n.1] A lawyer must be accurate when communicating about his or her services:
A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.
RPC 7.1. “A lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law.” RPC 7.4(a). But a lawyer shall not state or imply that the lawyer is a specialist in a particular field of law, except as provided by RPC 7.4.[n.2]
A lawyer cannot cause a nonlawyer to do that which the lawyer is ethically prohibited from doing. See RPC 5.3(c)(1);[n.3] RPC 8.4(a).[n.4] Therefore, Lawyer also must not cause the website to make false or misleading communications about Lawyer’s practice.
Before claiming her profile, Lawyer should take reasonable steps to ascertain the extent to which the website will make representations about Lawyer’s practice, including the numeric and descriptive rating, in order to determine whether any such representations will be inaccurate or misleading. If Lawyer determines that the website’s numeric and/or descriptive ratings of lawyers are not based upon the lawyer’s performance or merit and the website does not disclose how the ratings are calculated, then the lawyer must not participate in the website. If after claiming her profile, Lawyer determines that the website’s numeric and/or descriptive ratings of lawyers are not based upon the lawyer’s performance or merit and the website does not disclose how the ratings are calculated, then the lawyer must limit participation to ensuring that information is accurate and should consider posting a disclaimer, if it is reasonably feasible to do so.[n.5]
A lawyer who claims, adopts, or endorses information on a website listing becomes responsible to ensure that the information in the listing conforms to the Rules for Professional Conduct.[n.6] If Lawyer claims her profile and inadvertently provides inaccurate information, then Lawyer must make a prompt correction. Lawyer must also update her information if it changes, in order to ensure that only accurate information is provided.
For example, if Lawyer posted her contact information but later moved to a different law firm, then Lawyer must update her contact information within a reasonable time. By way of further example, if Lawyer provided information about the kinds of services that she will undertake but later decided to narrow the kinds of services that she will undertake, then Lawyer must update that information within a reasonable time.
2. Accurate client ratings or peer endorsements may be attached to Lawyer’s profile. If visitors or other lawyers attach to Lawyer’s account client ratings or peer endorsements that are false or misleading, then Lawyer must delete or disclaim the false or misleading comments or endorsements, if it is reasonably feasible to do so.
If Lawyer chooses to participate in the website, then Lawyer must periodically monitor her profile to reasonably ensure that inaccurate client ratings or peer endorsements are deleted or disclaimed in a reasonably prompt manner, if it is reasonably feasible to do so.
3. Lawyer may only endorse another lawyer if the endorsement is accurate. RPC 8.4(c) (prohibiting deceptive conduct). Lawyer must not endorse another lawyer unless she has sufficient knowledge about the other lawyer to provide an accurate statement.
Lawyer must not provide an endorsement to another lawyer simply because that lawyer agreed to endorse Lawyer. Doing so would be giving something of value (i.e., an endorsement) for recommending the Lawyer’s services. RPC 7.2(b).
1. “A lawyer shall not give anything of value to a person for recommending the lawyer’s services….” RPC 7.2(b) (emphasis added). When a communication endorses or vouches for a lawyer’s credentials, abilities, competence, character, or other professional qualities, such a communication is a recommendation of the kind contemplated by RPC 7.2(b). In this case, Lawyer’s information might have value to the website, but the mere providing of information contemplated by RPC 7.2 cmt. 2 does not constitute the giving of a thing of value in exchange for recommending services, even if that information results in a recommendation of the lawyer’s services. However, answering legal questions might constitute the giving of a thing of a value and would be prohibited if given to a person for recommending the lawyer’s service.
2. The Rule provides, inter alia, as follows:
(d) A lawyer shall not state or imply that a lawyer is a specialist in
a particular field of law, except upon issuance of an identifying
certificate, award, or recognition by a group, organization, or
association, a lawyer may use the terms “certified”, “specialist”,
“expert”, or any other similar term to describe his or her qualifications
as a lawyer or his or her qualifications in any subspecialty of the law.
If the terms are used to identify any certificate, award, or recognition
by any group, organization, or association, the reference must:
(1) be truthful and verifiable and otherwise comply with Rule 7.1;
(2) identify the certifying group, organization, or association; and
(3) state that the Supreme Court of Washington does not recognize
certification of specialties in the practice of law and that the
certificate, award, or recognition is not a requirement to practice law
in the state of Washington.
3. Rule 5.3 provides as follows:
With respect to a nonlawyer employed or retained by or associated with a lawyer:
(a) a partner, and a lawyer who individually or together with other
lawyers possesses comparable managerial authority in a law firm shall make
reasonable efforts to ensure that the firm has in effect measures giving
reasonable assurance that the persons conduct is compatible with the
professional obligations of the lawyer;
(b) a lawyer having direct supervisory authority over the nonlawyer shall
make reasonable efforts to ensure that the persons conduct is compatible
with the professional obligations of the lawyer; and
(c) a lawyer shall be responsible for conduct of such a person that would
be a violation of the Rules of Professional Conduct if engaged in by a
(1) the lawyer orders or, with the knowledge of the specific conduct,
ratifies the conduct involved; or
(2) the lawyer is a partner or has comparable managerial authority in the
law firm in which the person is employed, or has direct supervisory
authority over the person, and knows of the conduct at a time when its
consequences can be avoided or mitigated but fails to take reasonable
4. Rule 8.4(a) provides as follows:
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct,
knowingly assist or induce another to do so, or do so through the acts of another;
5. An express disclaimer should ordinarily be sufficient to notify users that the lawyer is no longer participating in the website.
6. See South Carolina Ethics Adv. Op. 09-10 (2009) (stating, inter alia, that “a lawyer who adopts or endorses information on any similar web site becomes responsible for conforming all information in the lawyer’s listing to the Rules of Professional Conduct” and also “[b]y claiming a website listing, a lawyer takes responsibility for its content and is then ethically required to conform the listing to all applicable rules”).