LinkedIn members know that "endorsements" are popping up everywhere. Can you make and accept them? Yes, but mind your ethical ps and qs, an authority warns.
Facebook, LinkedIn, and other social media platforms offer ever-expanding marketing options for professionals. But an attorney from St. Louis who practices and teaches legal-ethics law in Illinois warns that lawyers with the best of intentions can easily stumble into ethical quagmires online.
Armstrong Teasdale litigation partner Michael Downey said ethics violations are a very real possibility for even well-intentioned lawyers, despite his belief that attorney-disciplinary agencies tend to be slow in implementing prosecutions involving these kinds of online matters.
This is true, he said, of a recent development on the social-media site LinkedIn, which is geared to serve professionals. The site now allows users to "endorse" people in their network of connections for various aspects of their professional lives.
When making or receiving endorsements, Downey said lawyers must keep a few fundamental rules of ethics in mind so as to avoid any impropriety. They are rules that cover virtually all advertising done by lawyers in rules adopted by most, if not all, jurisdictions.
A 'legitimate endorsement'
"First, no false statements," said Downey, who is a past chair and present member of the ISBA Standing Committee and Professional Conduct, chair-elect of the American Bar Association's Law Practice Management Section, and a former member of the ABA Ethics and Technology Committee. "On LinkedIn, it has to be a legitimate endorsement. If people are endorsing me for legal ethics, it should be because they truly believe that I'm good at legal ethics, not because I bought them lunch."
Secondly, Downey said lawyers are generally limited under rules of professional responsibility as to the kinds of benefits they can give people in exchange for recommending their services.
"Paying a fee for endorsements, or two people saying 'I'll endorse you if you endorse me,' is not good," Downey said. "If it just so happens that you endorse each other, great, but it should not be done as a quid pro quo kind of thing."
Downey, who teaches legal ethics at Washington University and St. Louis University School of Law, said that 42 people thus far have endorsed him on his LinkedIn page for his legal-ethics practice. He admits that not all are his clients, although he feels justified accepting some endorsements from strangers who may have indirectly come to honestly appreciate his abilities and integrity as a lawyer.
"I've written about 60 or 70 articles on legal ethics, so maybe they've endorsed me because they've read my articles," he said. "When I teach these things, sometimes I point out a case where there was a law student who endorsed a professor. The professor had endorsed only one person in the world, and it was the same student. That looks bad and they could potentially get themselves in trouble."
The ethical Wild West
Courts and disciplinary commissions have already decided numerous cases involving judges who "friend" a lawyer on Facebook, Downey said. Is conduct frowned upon in those cases risky in the context of a LinkedIn endorsement? It's prudent to assume so.
For example, as tempting as it may be for a lawyer to tout a close relationship with a popular judge, doing so inappropriately can land the lawyer in hot water with the disciplinary commission, and could render the judge in violation of canons of judicial conduct.
"We believe you should hide that endorsement, but we don't know about any express authority on the issue," said Downey
Downey is not aware of any Illinois courts that have handled ethics cases involving endorsements on LinkedIn, nor does he believe the Illinois Attorney Registration and Disciplinary Commission has ruled on the issue.
"Frankly, I think that the ethics authorities like the ARDC are a little bit slow in coming to the social media issues," he said.
Downey said the Internet remains the newest frontier for the adoption and enforcement of ethical guidelines, and American development has almost always grown ahead of the courts.
"This is, in a way, still like the Wild West," he said.