Board wrestles with LinkedIn issues: declines to issue opinion dealing with hidden text and metatags.

The Bar Board of Governors has narrowly decided not to issue a proposed advisory opinion relating to the deceptive use of hidden text and metatags on attorney websites but has authorized a committee to explore preparing an opinion on lawyers using the business networking site LinkedIn.

While that opinion is being considered, the board also withdrew a Bar staff opinion that advised an attorney that using LinkedIn violated Bar advertising rules.

Even as the board acted at its December 16 meeting in Ft. Lauderdale, board members bemoaned the difficulty of keeping board rules and policies up to date in a fast-changing digital online world.

"Our rules are the rules," said Carl Schwait, chair of the Board Review Committee on Professional Ethics, which reported to the board on the two issues. "The problem is the social media and advertising are going faster than we can implement rules and guidelines."

The issues with LinkedIn arose from the service's practice of encouraging "testimonials" for participants and those testimonials--even though not sought or controlled by the lawyers --can be contrary to Bar rules on testimonials and talking about past results.

In addition, LinkedIn posts information about lawyers under the headings of "Specialties" or "Skills and Expertise." Bar rules prohibit lawyers from saying they are experts or have expertise or that they specialize in an area of law unless they are board certified. Lawyers cannot claim to be experts or to specialize in areas where there is no certification and only lawyers, not law firms, can use the terms.

The Standing Committee on Advertising voted to ask the Board of Governors to direct it to prepare an advisory opinion on using LinkedIn. It took that action at a November meeting where it also voted 3-1 to tell a law firm it could not list its practice areas on LinkedIn because LinkedIn would list them under a heading of "Specialties." (See story in the November 15 Bar News.) The law firm argued such a restriction was unfair because it could not control what LinkedIn did with the information the firm provided.

The New York State Bar Association has issued an ethics opinion banning law firms from having practice areas listed as specialties on LinkedIn.

The board debate focused on whether it was practical and reasonable for the Bar to try to control what a third party like LinkedIn does online and how quickly the Bar should try to get guidance to its members.

"Why are we nitpicking something...