Lawyer’s Acceptance of Recommendations on Professional Networking Website
Adopted: October 26, 2012
Opinion rules that a lawyer may ask a former client for a recommendation to be posted on the lawyer’s profile on a professional networking website and may accept a recommendation if certain conditions are met.
Inquiry #1:
Lawyer has a profile listing on a professional social networking website, such as LinkedIn. The networking website has a feature that allows members to write recommendations for each other. A member of the networking website may request a recommendation from another member, or a member may send a recommendation to another member without being asked. In either event, the member receiving the recommendation has the opportunity to review the recommendation and decide whether to “accept” the recommendation. For a recommendation to be published on the member’s online profile, it has to "accepted."
May a lawyer with a professional profile on the networking website accept a recommendation from a current or former client?
Opinion #1:
Yes. When a lawyer has control over the content of postings on his or her profile on the networking website, the lawyer may accept a recommendation from a current or former client subject to certain conditions. The lawyer may only “accept” recommendations that comply with the Rules of Professional Conduct that pertain to advertising. Rule 7.1 provides that a lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A communication that is likely to create an unjustified expectation about results the lawyer can achieve is misleading. Rule 7.1(a)(2).
A recommendation posted on the networking website is essentially a client testimonial. Depending upon content, a client testimonial has the potential to create unjustified expectations. The Ethics Committee recently established guidelines under which a lawyer may use certain client testimonials in advertising. See 2012 FEO 1. A lawyer may only accept a recommendation from a current or former client if the recommendation complies with 2012 FEO 1.
Pursuant to 2012 FEO 1, a lawyer may accept a client recommendation that is limited to a discussion of the characteristics of a lawyer’s client service. If the recommendation includes general references to the results the lawyer obtained for the client, the lawyer may accept the recommendation if it can be accompanied by an appropriate disclaimer. The lawyer may not accept a recommendation that refers to a settlement or verdict of a specific dollar amount. In addition, the lawyer must review the recommendation for any confidential information that the lawyer believes should not be published online. Therefore, it may be necessary for the lawyer to ask the client to add disclaiming language or to delete certain content.
Inquiry #2:
May a lawyer with a professional profile on the networking website send a recommendation request to a current or former client?
Opinion #2:
Yes, subject to certain conditions. A lawyer may ask a current or former client for a recommendation that consists of comments indicating the client's level of satisfaction with certain aspects of the lawyer-client relationship. See 2007 FEO 4.
The lawyer’s duty of confidentiality to the client requires that the lawyer advise the client, at the time of the request, that the recommendation may be published on the member’s online profile, and the lawyer must obtain the client’s consent to publication.
The lawyer’s duties as to a recommendation received pursuant to the request are set out in Opinion #1 above.