Can a North Carolina lawyer accept or request a client recommendation on a professional networking site like LinkedIn?

Plain-English summary

The inquiry concerns a lawyer's profile on a professional networking site such as LinkedIn, where members can post recommendations that the recipient must "accept" before they appear. The opinion concludes that, because the lawyer controls what is published on his profile, he may accept a recommendation from a current or former client, subject to conditions drawn from the advertising rules. Rule 7.1 bars false or misleading communications about the lawyer or the lawyer's services, and under Rule 7.1(a)(2) a communication likely to create an unjustified expectation about results is misleading.

The opinion treats an online recommendation as essentially a client testimonial and applies the guidelines the Ethics Committee set in 2012 FEO 1. A lawyer may accept a recommendation limited to the characteristics of the lawyer's client service; if it makes general references to results obtained, the lawyer may accept it only if it can carry an appropriate disclaimer; and the lawyer may not accept a recommendation that refers to a settlement or verdict of a specific dollar amount. The lawyer must also review the recommendation for confidential information that should not be published, which may mean asking the client to add disclaiming language or delete content.

On requesting a recommendation, the opinion concludes (citing 2007 FEO 4) that a lawyer may ask a current or former client for comments about the client's level of satisfaction with aspects of the relationship. Because of the duty of confidentiality, the lawyer must advise the client at the time of the request that the recommendation may be published on the profile and must obtain the client's consent to publication. Whatever recommendation comes back is then governed by the same acceptance conditions.

In practice

Under the North Carolina rules as they stood at the time of the opinion, conduct in which a lawyer accepts a client's online recommendation is permitted only where the recommendation satisfies the advertising rules as applied in 2012 FEO 1. Per the opinion, that means no specific settlement or verdict figures, a disclaimer where the recommendation references results, and a review for confidential information before the lawyer accepts it.

Per the opinion, a lawyer who requests a recommendation must, at the time of the request, tell the client the recommendation may be published on the lawyer's profile and obtain the client's consent, consistent with the duty of confidentiality.

Common questions

Q: Can a lawyer accept a client's LinkedIn recommendation?

A: Yes, if the lawyer controls his profile content and the recommendation complies with the advertising rules. Opinion #1 ties the analysis to Rule 7.1 and the testimonial guidelines in 2012 FEO 1.

Q: Can the recommendation mention the result or the amount the lawyer recovered?

A: A recommendation that makes general references to results may be accepted only with an appropriate disclaimer, and the opinion states the lawyer may not accept a recommendation that refers to a settlement or verdict of a specific dollar amount.

Q: Does the lawyer have to check the recommendation for confidential information?

A: Yes. Opinion #1 requires the lawyer to review the recommendation for confidential information that should not be published online, which may require asking the client to add disclaiming language or delete content.

Q: Can a lawyer ask a client to write a recommendation?

A: Yes, subject to conditions. Opinion #2 concludes a lawyer may request comments about the client's satisfaction with aspects of the relationship, but must advise the client that the recommendation may be published and obtain the client's consent.

Background and rules framework

The opinion applies North Carolina Rule 7.1 (communications concerning a lawyer's services, the analogue of Model Rule 7.1), which prohibits false or misleading communications, including, under Rule 7.1(a)(2), communications likely to create unjustified expectations about results. It reads that rule together with two prior North Carolina opinions: 2012 FEO 1, which sets the conditions for using client testimonials in advertising, and 2007 FEO 4, on requesting client comments.

Citations and references

Rules of Professional Conduct:

• MR 7.1 / NC Rule 7.1, 7.1(a)(2) (false or misleading communications; unjustified expectations)

Other opinions cited:

• NC 2012 FEO 1: conditions for using client testimonials in advertising.
• NC 2007 FEO 4: requesting client comments about satisfaction with the representation.

See also

• CA COPRAC Op. 2012-186: Social Media as Advertising
• CA COPRAC Op. 2019-199: Online Directory Profiles
• FL Bar Ethics Op. 20-1: Responding to Online Reviews

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/2012-formal-ethics-opinion-8/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

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.