(This article appeared in Journal 19,1, March 2014)
An inquiry currently under consideration by the Ethics Committee contemplates whether the Rules of Professional Conduct permit a lawyer and a judge to "connect" on LinkedIn and, if so, whether either one can "endorse" the other.
LinkedIn is one of a number of professional networking websites. My (very basic) understanding of the website is that it allows registered members to maintain a list of contact details for people with whom they have established "connections." Members can invite another member or even a nonmember to become a connection. Members can communicate with their connections on the website, and can also provide "endorsements" for their connections.
A LinkedIn member has the option of displaying a "skills & expertise" section within his or her profile. The member can select specific skills to be listed. Examples include: commercial litigation, family law, trial practice, contract negotiation, appeals, etc. A LinkedIn member may endorse another member for any of the skills listed, or even add a new item to another member’s "skills & expertise" section. For example, it is possible for a LinkedIn member to endorse a family lawyer for the skill and expertise of "patent prosecution."
A member who is being endorsed by another member is notified of the endorsement and has the ability to reject the endorsement entirely or to pick and choose specific endorsements to be displayed. The endorsed member may also subsequently edit the "skills & expertise" section to "hide" selected endorsements.
The current draft of the proposed opinion (which is still being considered by the Ethics Committee) provides that a lawyer may accept an invitation to connect from a judge and may also send an invitation to connect to a judge. The opinion cautions, however, that if the lawyer represents clients in proceedings before a judge who invites the lawyer to connect on LinkedIn, the lawyer must "not engage in conduct prejudicial to the administration of justice; not state or imply an ability to influence improperly a government agency or official; and avoid ex parte communications with the judge regarding the legal matter or issue the judge is considering." (This would be a good time to point out the North Carolina State Bar Ethics Committee does not opine on the actions of members of the judiciary. Rather, the North Carolina Judicial Standards Commission has this responsibility. Therefore, our opinion only addresses the actions of the lawyer in these scenarios.)
The more controversial aspect of the proposed opinion pertains to the issue of endorsements between judges and lawyers. Rule 8.4(e) of the Rules of Professional Conduct provides that it is professional misconduct for a lawyer to "state or imply an ability to influence improperly a government agency or official." If a lawyer accepts an endorsement from a judge as to the lawyer's skills and expertise in the area of "trial practice" and displays the endorsement on the lawyer's LinkedIn profile, does this indicate that lawyer has the ability to influence the judge improperly?
The current draft provides that a lawyer may not accept an endorsement from a judge unless the lawyer believes that he or she will never represent a client in a matter before the judge, except as permitted by the North Carolina Code of Judicial Conduct pertaining to political campaigns. The draft further provides that a lawyer may endorse a judge only in the context of judicial political campaigns.
At the recent meeting of the Ethics Committee, this particular proposed opinion was tabled so that the committee could solicit comments from members of the Bar. Here are some issues the Ethics Committee is still considering:
- What responsibility does a LinkedIn member have to remove any endorsements made by—or for—a colleague who subsequently becomes a judge?
- If one lawyer in a firm is prohibited from accepting endorsements from a judge, are all lawyers in the firm similarly prohibited?
- Should the proposed opinion have a broad application to other types of social media, such as Facebook?
- Ethics opinions allow a lawyer to appear before a judge who is a current client with full disclosure and consent of all parties. Is an endorsement by a judge on LinkedIn substantially different?
The Ethics Committee would like to "connect" with the members of the bar—young or old, PC or Mac—and get your thoughts on these, or other, issues pertaining to the use of LinkedIn or similar professional networking websites by lawyers. You may email your comments to Lanice Heidbrink at Lheidbrink@ncbar.gov.
All comments received prior to the next meeting of the Ethics Committee will be provided to committee members for consideration and will be included in the meeting agenda. Note that all Ethics Committee meetings are public and comments will become part of the public records of the State Bar.
Suzanne Lever is assistant ethics counsel for the North Carolina State Bar.