For quite some time the legal community has been aware that lawyer websites, blogs, and social media pages such as Facebook, Twitter, and LinkedIn may appear as invitations to the public to communicate with the lawyers to obtain legal advice or representation. Thus, the Rules of Professional Conduct regarding advertising (Model Rules 7.1–7.5) will apply. Depending on the content of the websites or social media pages at issue, the public may reasonably believe that unsolicited messages to a lawyer containing sensitive information are confidential. Even worse, the public may reasonably believe that communicating with a lawyer through a social media site creates an attorney-client relationship. Obviously, these situations can create conflicts of interest and confidentiality issues under ABA Model Rules of Professional Conduct 1.6, 1.7, and 1.18.
Most lawyers try to avoid these risks by including clear and prominent warnings on their websites and social media pages, such as: “Communications via this website do not create an attorney-client relationship and are not confidential.” See ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 10-457 (2010); Arizona Ethics Op. 02-04 (2002) (lawyer owes no duty of confidentiality to persons who send unsolicited emails, but law firm websites should include disclaimers that address confidentiality and not forming attorney/client relationship); Virginia Ethics Op. 1842 (2008) (lawyer website invitation to viewers to complete online form with details of their circumstances to get free evaluation is invitation to form lawyer-client relationship, and information is confidential).
As for LinkedIn, many lawyers have been inserting these warnings into the feature titled: “Add custom advice for those who contact you.” Historically, this field would allow for special instructions prominently displayed to readers prior to them being able to message the lawyer using LinkedIn. By including those special instructions lawyers would assume viewers are alerted to the fact that sending lawyers a message via LinkedIn will not create an attorney/client relationship and senders should not assume that the message contents will be kept confidential. This would normally avoid inadvertently creating attorney/client relationships and comply with the cautions noted in the Opinions listed above.
This all seems simple enough. So what’s the problem?
Have you checked your LinkedIn profile lately? Are your warnings still there? If you relied on the “Add custom advice for those who contact you” feature to incorporate these warnings in your LinkedIn profile, guess what? Your warnings no longer show up in your LinkedIn profile.
Until recently, the LinkedIn privacy and communication settings still appeared to provide the option of using this feature to provide warnings to LinkedIn members wishing to communicate with you:
However, LinkedIn has disabled this feature (and has since removed this interface as well). Thus, any warnings or advice previously inserted on this page no longer appear on the user’s profile page. (In response to an inquiry, LinkedIn stated this feature was not utilized enough to warrant its continued appearance in users’ profiles).
Attorneys need to revisit where and how they insert these types of warnings on their LinkedIn pages so the disclaimer will adequately warn viewers. So where should these disclaimers appear such that they are “prominently displayed” to viewers and avoid the casual viewer mistakenly believing they can send a message to a lawyer via LinkedIn and they will have retained the lawyer?
LinkedIn users may be tempted to place the warnings at the end of their personal summary (which seems like an obvious choice). But the LinkedIn profile page only shows the first two lines of the personal summary, requiring the viewer to affirmatively click on the “see more” link to read the rest of the summary. A viewer could read the first two lines of the personal summary and simply send the lawyer a message without clicking on the “see more” option – thereby missing the necessary disclaimer.
Thus, it appears the best (and perhaps only) way to ensure a warning automatically and prominently appears is to insert a shorter warning in the first few sentences of the lawyer’s profile summary. That way the warning will automatically appear as part of the viewed LinkedIn page without the viewer having to click further. See the examples further below.
Also, please remember to include similar disclaimers on law firm websites and social media accounts where legal services may be communicated.