The State Bar Association of North Dakota Fall 2013 Gavel Magazine | Page 24

SOCIAL NETWORKING AND LAWYER
ADVERTISING REGULATION

Justice Daniel Crothers

North Dakota Supreme Court

Can internet social network postings
become regulated lawyer advertising? At
least one bar ethics opinion says “yes.”1
North Dakota has not addressed this
question by ethics opinion or by known or
reported litigation. North Dakota’s general
rule on communications about lawyer
services is based on the ABA Model Rules
of Professional Conduct and provides: “A
lawyer shall not make a false or misleading
communication about the lawyer, a person
professionally associated with the lawyer,
or their services.”2
Our advertising rule imposes additional
restrictions on advertising, providing
among other things:
Subject to the requirements of Rule
7.1 and 7.3, a lawyer may market and
advertise legal services through media,
including published and on-line directories; newspapers, newsletters and
other periodicals; outdoor advertising;
electronic advertising, including radio,
television, video and the Internet; and
through text-based communications
including written correspondence and
e-mail.3
Comment 2 to Rule 7.2 notes: “[E]lectronic media, such as the Internet, can be
an important source of information about
legal services, and lawful communication
by electronic mail is permitted by this
Rule.”4
North Dakota’s Rules also address advertising fields of practice, stating: “A lawyer
may communicate the fact that the lawyer
does or does not practice in particular
fields of law.”5 This rule allows advertising

22

specialties in patent, admiralty, or other
“course field” areas.6
Comment to our Rule 7.4 notes:
Certification signifies that an objective entity has recognized an advanced
degree of knowledge and experience in
the specialty area greater than is suggested by general licensure to practice
law. Certifying organizations may be expected to apply standards of experience,
knowledge, and proficiency to ensure
that a lawyer’s recognition as a specialist
is meaningful and reliable. In order to
ensure that consumers can obtain access
to useful information about an organization granting certification, the name
of the certifying organization must be
included in any communication regarding certification.7
The Philadelphia Bar Ethics Committee
opinion considered this same rule in the
context of a lawyer’s posting on the social
media site LinkedIn.8 It concluded, “[I]
t is clear that any statements on LinkedIn,
or on any other website, must be truthful,
may not mislead the public, and should
convey only objective verifiable information.”9
Regarding advertising specialties on
LinkedIn by listing areas of practice under
“skills and expertise, the Philadelphia Bar
opinion noted:
The format of LinkedIn creates ambiguity. While LinkedIn does not include
the word “specialist” on a profile, the
inquirer is concerned about listing pra
ctice areas in the “Skills and Expertise”
section since use of the term “expertise” might be considered akin to use of
“specialist.” The Committee finds that
listing under that heading, which cannot
be changed by an individual placing a
profile there, is merely listing the areas
in which an attorney practices, similar to
such listings on many law firm websites.10
The opinion addressed specific categories of expertise, explaining:
However, turning to the specific

categories under that listing, in which
the inquirer can specifically indicate that
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