At its last quarterly meeting, the Ethics Committee adopted a proposed opinion about the propriety of making and accepting both invitations to connect and endorsements on LinkedIn. The proposed opinion first holds that an attorney may ordinarily accept an invitation to connect from a judge. The opinion warns that if the attorney is currently in proceedings before the judge at the time of the invitation, however, the Rules of Professional Conduct may require the lawyer to decline the invitation at that time. The lawyer must at the time of the invitation determine whether acceptance of the invitation during the pendency of a case will impair the lawyer’s ability to comply with the Rules against ex parte communications (Rule 3.5) and prohibiting conduct that is prejudicial to the administration of justice (Rule 8.4), among others. Ultimately, the opinion directs lawyers to be mindful of their obligation to protect the integrity of the judicial system and to avoid creating an appearance of judicial partiality. The same criteria apply when deciding whether to send an invitation to a judge to connect.
Although there does not appear to be a hard and fast rule prohibiting it, my advice, based upon this proposed opinion, is to wait to connect with a judge until you are not appearing before that judge, if possible.
The next part of the opinion dealing with endorsements was an education for me. I didn’t really know how the LinkedIn endorsements worked. Apparently, you have an option to display your “skills & expertise” on your profile page. Your connections can then endorse a skill or expertise for you. Then you will get a notification of the endorsement. If you do nothing, and the endorsement is for a skill you have selected to show, then that endorsement automatically will appear on your profile page. You may also edit the “skills & endorsements” section to “hide” selected endorsements or skills. Why is all of this important? The proposed ethics opinion says that it is OK to endorse a judge for skills or expertise (assuming you are not currently appearing before them). Likely, this is permitted because it is really no different than sponsoring a judicial campaign or being listed publicly as a donor. The proposed opinion goes on to say that an attorney may not, under any circumstances or at any time, accept an endorsement from a judge. Further, if a person that you had previously accepted an endorsement from then becomes a judge, you are required to remove the endorsement from your profile. And, this prohibition applies to any social media website that allows public displays of endorsements or recommendations.
Ack! I’m not checking my LinkedIn for people that I have connected with who may have become judges and might have endorsed me at one time! Perhaps I should know or remember which of my connections have become judges, but heck, I sometimes have trouble remembering what I ate for breakfast. Before you panic, know that this opinion is being published for comments which if received by the Bar, will be considered by the Ethics Committee at its next meeting in October 2014. If the opinion does become final as is, hopefully you don’t have too many endorsements to check. This can be one time that I count myself lucky not to know very many people.