Can a North Carolina lawyer connect with a judge on LinkedIn, and can the lawyer display a judge's endorsement or recommendation?

Plain-English summary

The opinion addresses a lawyer with a LinkedIn profile and a judge who may invite the lawyer to connect, endorse the lawyer's skills, or recommend the lawyer, with each of those actions potentially displayed publicly. On Inquiries #1 and #2, the opinion concludes a lawyer may accept, and may send, an invitation to connect with a judge, evaluating the interaction the same way as a personal interaction such as a dinner invitation. The limits come from the lawyer's duties when appearing before that judge: to avoid conduct prejudicial to the administration of justice (Rule 8.4(d)), not to state or imply an ability to influence a government official improperly (Rule 8.4(e)), and to avoid ex parte communications about a matter the judge is considering (Rule 3.5). If accepting an invitation during a pending matter would impair compliance with these duties, the lawyer should not connect until the matter concludes, though the lawyer may tell the judge why, so long as that message does not discuss the underlying matter. The opinion also notes that a lawyer may not assist a judge in violating the Code of Judicial Conduct under Rule 8.4(f).

On the endorsement and recommendation questions, the opinion splits along the appearance of partiality. A lawyer may endorse a judge's skills or recommend a judge, subject to the Opinion #1 limits (Inquiry #3). But a lawyer may not accept and display a judge's endorsement or recommendation, because doing so would create an appearance of judicial partiality, citing Rule 8.4(e) (Inquiry #4). If a lawyer already displays an endorsement or recommendation from someone who later becomes a judge, the lawyer must remove it once the lawyer knows or reasonably should know of the judgeship (Inquiry #6).

For non-judges, the opinion applies the advertising rule. A lawyer must ensure that communications about the lawyer's services are not false or misleading under Rule 7.1(a); provided an endorsement or recommendation is truthful and not misleading, the lawyer may display it, citing 2012 FEO 8 (Inquiry #5). The holdings apply to any social media application that allows public display of connections, endorsements, or recommendations between lawyers and judges, not only LinkedIn (Inquiry #7).

In practice

Under the North Carolina rules as they stood at the time of the opinion, conduct in which a lawyer connects with a judge on a professional network is permitted when evaluated like an ordinary social interaction, but is not permitted where, during a pending matter, it would create an ex parte communication channel or imply improper influence under Rules 3.5 and 8.4. Per the opinion, the analysis turns on whether the lawyer has a matter pending before the judge and whether the online connection would lead to prohibited ex parte contact or the appearance of partiality.

The opinion draws a firm line on display: a lawyer may not show a judge's endorsement or recommendation on a profile, must remove one if the recommender becomes a judge, and may display endorsements from non-judges only if they are truthful and not misleading under Rule 7.1(a). The holdings extend to any platform that publicly displays lawyer-judge connections, endorsements, or recommendations.

Common questions

Q: Can a North Carolina lawyer accept a LinkedIn invitation to connect from a judge?

A: Yes, generally. Opinion #1 evaluates the invitation like a personal interaction with a judge and permits connecting, but the lawyer must decline or wait if, during a pending matter before that judge, connecting would risk ex parte communication or the appearance of improper influence under Rules 3.5 and 8.4.

Q: Can a lawyer connect with the judge while a case is pending before that judge?

A: Only if it does not impair the lawyer's duties. Opinion #1 says if accepting would impair compliance, the lawyer should not connect until the matter concludes; the lawyer may tell the judge the reason as long as the message does not discuss the underlying matter.

Q: Can a lawyer display a judge's endorsement or recommendation on their profile?

A: No. Opinion #4 concludes that displaying a judge's endorsement or recommendation creates an appearance of judicial partiality and the lawyer must decline it, citing Rule 8.4(e); Opinion #6 adds that the lawyer must remove one if the recommender later becomes a judge.

Q: Can a lawyer endorse or recommend a judge?

A: Yes, subject to the same limits. Opinion #3 permits a lawyer to endorse a judge's skills or recommend a judge, subject to the duties described in Opinion #1.

Q: Can a lawyer display endorsements from people who are not judges?

A: Yes, if truthful. Opinion #5 says that under Rule 7.1(a) the lawyer must keep communications about the lawyer's services from being false or misleading, and a truthful, non-misleading endorsement from a non-judge may be displayed.

Q: Do these rules apply only to LinkedIn?

A: No. Opinion #7 says the holdings apply to any social media application that allows public display of connections, endorsements, or recommendations between lawyers and judges, such as Facebook, Twitter, Google+, Instagram, and Myspace.

Background and rules framework

The opinion applies North Carolina Rule 3.5 (impartiality and decorum of the tribunal, the analogue of Model Rule 3.5), which bars ex parte communications with a judge, and Rule 8.4 (misconduct, the analogue of Model Rule 8.4), specifically Rule 8.4(d) (conduct prejudicial to the administration of justice), Rule 8.4(e) (stating or implying an ability to influence a government official improperly), and Rule 8.4(f) (knowingly assisting a judge in violating the rules of judicial conduct).

For displaying endorsements and recommendations from non-judges, the opinion applies Rule 7.1 (communications concerning a lawyer's services, the analogue of Model Rule 7.1), specifically Rule 7.1(a), which prohibits false or misleading communications about the lawyer's services. The opinion also references the North Carolina Code of Judicial Conduct as the source of the judge's own obligations.

Citations and references

Rules of Professional Conduct:

• MR 3.5 / NC Rule 3.5 (no ex parte communications with a judge)
• MR 8.4 / NC Rule 8.4 (misconduct; Rule 8.4(d), 8.4(e), 8.4(f))
• MR 7.1 / NC Rule 7.1(a) (false or misleading communications about the lawyer's services)

Other opinions cited:

• NC 2005 FEO 1: protecting the integrity of the judicial system and avoiding the appearance of judicial partiality.
• NC 2012 FEO 8: a lawyer's acceptance of recommendations on a professional networking website.

See also

• ABA Formal Op. 462: Judge's Use of Electronic Social Media
• Maine Ethics Op. 217: Access and Use of Social Media
• CA Bar Op. 2012-186: Social Media Postings and Advertising

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/2014-formal-ethics-opinion-8/

Original opinion text

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

Facts:

Lawyer has a profile listing on LinkedIn, a social networking website for people in professional occupations. The website allows registered users (“members”) to maintain a list of contact details on their LinkedIn pages for people with whom they have some level of relationship via the website. These contacts are called “connections.” Members can invite anyone (whether a site user or not) to become a connection.

LinkedIn can be used to list jobs and search for job candidates, to find employment, and to seek out business opportunities. Members can view the connections of other members, post their photographs, and view the photos of other members. Members can post comments on another member’s profile page. Members can also endorse or write recommendations for other members. Such endorsements or recommendations, if accepted by the recipient, are posted on the recipient’s profile listing.

Inquiry #1:

May a lawyer with a professional profile on LinkedIn accept an invitation to connect from a judge?

Opinion #1:

Yes. Interactions with judges using social media are evaluated in the same manner as personal interactions with a judge, such as an invitation to dinner. In certain scenarios, a lawyer may accept a judge’s dinner invitation. Similarly, in certain scenarios, a lawyer may accept a LinkedIn invitation to connect from a judge. However, if a lawyer represents clients in proceedings before a judge, the lawyer is subject to the following duties: to avoid conduct prejudicial to the administration of justice; to not state or imply an ability to influence improperly a government agency or official; and to avoid ex parte communications with a judge regarding a legal matter or issue the judge is considering. See Rule 3.5 and Rule 8.4. These duties may require the lawyer to decline a judge’s invitation to connect on LinkedIn.

Rule 8.4(d) provides that it is professional misconduct for a lawyer to “engage in conduct that is prejudicial to the administration of justice.” Rule 8.4(e) provides that it is professional misconduct for a lawyer to “state or imply an ability to influence improperly a government agency or official.” Lawyers have an obligation to protect the integrity of the judicial system and to avoid creating an appearance of judicial partiality. See 2005 FEO 1.

If a lawyer receives an invitation to connect from a judge during the pendency of a matter before the judge, and the lawyer concludes that accepting the invitation will impair the lawyer’s compliance with these duties, the lawyer should not accept the judge’s invitation to connect until the matter is concluded. The lawyer may communicate to the judge the reason the lawyer did not accept the judge’s invitation. Such a communication with the judge is not a prohibited ex parte communication provided the communication does not include a discussion of the underlying legal matter.

Rule 3.5 prohibits lawyers from engaging in ex parte communications with a judge. Because connected members can post comments on each other’s profile pages, the connection between a judge and a lawyer appearing in a matter before the judge could lead to improper ex parte communications. Therefore, while the lawyer has a matter pending before a judge, the lawyer may not use LinkedIn or any other form of social media to communicate with the judge about the pending matter.

Rule 8.4(f) provides that it is professional misconduct for a lawyer to “knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.” To the extent that a judge is prohibited by the North Carolina Code of Judicial Conduct from participating in LinkedIn, or from sending invitations to connect to lawyers, a lawyer may not assist the judge in violating such prohibitions.

Inquiry #2:

May the lawyer send an invitation to connect to a judge?

Opinion #2:

Yes, subject to the limitations described in Opinion #1.

Inquiry #3:

A LinkedIn member has the option of displaying a “skills & expertise” section within his profile. A member can add items to the “skills & expertise” section of his profile page. In addition, some connections can add a new item to another member’s “skills & expertise” section, can “endorse” a skill or expertise already listed for the member, or write a recommendation for the member. A member who is being endorsed by another member will receive a notification containing the identity of the endorser and the specific skill or expertise that is being endorsed. The member may decline the endorsement entirely or choose the specific endorsements to be displayed. The endorsed member may also subsequently edit the “skills & expertise” section to “hide” selected endorsements. If a member endorses another member, and the endorsement is not declined by the recipient, the endorser’s name and profile picture will appear next to the skill on the endorsed member’s profile.

A recommendation is a comment written by a LinkedIn member to recognize or commend another member. When someone recommends a member, the recommended member will receive a message in the recommended member’s LinkedIn inbox and a notification on the member’s “Manage Recommendations” page. Recommendations are only visible to connections. A member can choose to hide a recommendation from the member’s profile but cannot delete it. Recommendations written for others can be withdrawn or revised.

May a lawyer endorse a judge’s legal skills or expertise or write a recommendation on the judge’s profile page?

Opinion #3:

Yes, subject to the limitations explained in Opinion #1.

Inquiry #4:

May a lawyer accept an endorsement or recommendation from a judge and display the endorsement or recommendation on his profile page?

Opinion #4:

No. Displaying an endorsement or recommendation from a judge on a lawyer’s profile page would create the appearance of judicial partiality and the lawyer must decline. See Rule 8.4(e).

Inquiry #5:

May a lawyer accept and post endorsements and recommendations on his LinkedIn profile page from persons other than judges?

Opinion #5:

Lawyers are professionally obligated to ensure that communications about the lawyer or the lawyer’s services are not false or misleading. See Rule 7.1(a). Provided that the content of the endorsement or recommendation is truthful and not misleading in compliance with the requirements of Rule 7.1, the lawyer may post endorsements and recommendations from persons other than judges on the lawyer’s LinkedIn profile page. See 2012 FEO 8.

Inquiry #6:

Lawyer A previously accepted and displayed on his LinkedIn profile page an endorsement or recommendation from Lawyer B, who subsequently became a judge. Is Lawyer A required to remove Lawyer B’s endorsement or recommendation?

Opinion #6:

Yes, if Lawyer A knows, or reasonably should know, that Lawyer B has become a judge. See Opinion #4.

Inquiry #7:

Do the holdings in this opinion apply to other social media applications such as Facebook, Twitter, Google+, Instagram, and Myspace?

Opinion #7:

The holdings apply to any social media application that allows public display of connections, endorsements, or recommendations between lawyers and judges.