The second problematic issue regarding social media as “advertising” and Model Rule 7.1 regards recommendations, endorsements and intentionally displayed social networking “connections” made by the lawyer. When a lawyer invites such recommendations or online displays of support/endorsement, the same “policing” requirements apply, as per the South Carolina and Florida bar Associations. These ethics opinions are clearly aimed at ensuring such “recommendations” on sites like LinkedIn do not create “unjustified expectations” in violation of MR 7.1. However, the following analysis illustrates that a similar and more widespread endorsement practice on twitter (called a “follow-back”) goes unpunished or, perhaps more accurately, unnoticed by many state bar associations. This analysis illustrates that the “follow-back” practice is just as misleading as the currently (and justly) prohibited practice on Linkedin. This paper does not advocate that these practices should be allowed. Instead, it simply illustrates that two identically misleading practices occur on social networking sites by lawyers, but only one of these two practices is recognized and therefore prohibited by state bar associations. Such selective recognition and enforcement makes it nearly impossible for a lawyer to know what online behavior is allowed, and what is prohibited. Ultimately, this ambiguity is the problem for lawyers who wish to use social networking without violating ethics rules. Accordingly, the purpose of this analysis is to illustrate the ambiguity problem, not to advocate why the misleading practice should be allowed.
On the business-specific networking website LinkedIn, users may “recommend” others within their network by praising them and their work in a posting on that user’s LinkedIn page. While the intention is for these recommendations to be genuine, it can be easy for users to rack up large numbers of less-than-genuine “recommendations” on LinkedIn and thus have a profile page that misrepresents the quality of their reputation and/or work product. This is precisely why the South Carolina and Florida Bar Associations have rightfully prohibited such conduct. As per the South Carolina and Florida ethics opinions, when other users add “recommendations” or other information about the attorney’s reputation and or past performance, that attorney is obligated to police the information posted on his page to ensure the accuracy and legitimacy of the posted content. As previously, discussed, failure to do so could result in a violation of MR 7.1’s prohibition of false or misleading information.
The South Carolina opinion specially states that any such recommendation or third-party posting on an attorney’s LinkedIn page must not “create unjustified expectations or otherwise mislead a prospective client”. Accordingly, if State Bar associations are able to see the potential fraudulent misrepresentation in someone’s explicit “recommendation” of another attorney’s work/reputation on LinkedIn, they should also see how the nearly identical process of reciprocally “following-back” other users on Twitter (discussed below) would meet the same threshold once Bar Associations begin to understand the follow-back concept. Currently, only the LinkedIn practice is prohibited, but both of these practices equally violate the rules by misleading the public. Therefore, State Bar Associations should equally recognize (and enforce the rules against) both of these misleading practices.