Unknowingly, many Quebec lawyers may be in breach of ethical
obligations regarding Social Media use.
Quebec's new Code of Professional Conduct of
Lawyers (the "Code") came into force on March 26,
2015 and replaced a previous iteration of the law. Parts of the
Code were adapted to the needs of society in an increasingly
technological age; however, Article 145, concerning lawyers'
advertising, remained untouched. Article 145 states that: "In
his advertising, a lawyer may not use or allow to be used an
endorsement or statement of gratitude concerning him." Its
strict application implies that any endorsement, including any
posted online, may be in violation of the Code.
Article 145 may evoke notions of the stereotypically bombastic
and outrageous commercials that advertise law practices on American
television. Article 145 clearly prohibits such advertisements,
which are less about providing meaningful legal information and
more about pandering spectacle. However, the language of the
article also leads technologically-minded advocates to wonder
whether their more conservative social media practices are
Lawyers have increasingly taken to social media to advertise
their services. A significant percentage of Quebec lawyers now make
use of professional networking websites such as LinkedIn. On
LinkedIn, there is a "Recommendations" section where one
can endorse a LinkedIn user with whom one is connected, or publish
a statement of gratitude about that person. One does not need to be
connected with someone, however, to view the endorsements and
statements of gratitude that have been published on their profile.
Allowing these endorsements to be posted and displayed on social
media is in breach of Article 145 of the Code.
In the United States, several authors have noted that LinkedIn
profiles do constitute an advertising platform. Of note, The New
York County Lawyers Association Professional Ethics Committee
published a formal opinion in March 2015 stating that:
"...[I]f an attorney chooses to include information such
as...endorsements, or recommendations, the attorney must treat his
or her LinkedIn profile as attorney advertising and include
appropriate disclaimers... [A] LinkedIn profile that includes
subjective statements regarding an attorney's skills, areas of
practice, endorsements, or testimonials from clients or colleagues
is likely to be considered advertising."
No Canadian jurisdiction, other than Quebec, prohibits the use
of endorsements or statements of gratitude in lawyers'
advertising. The codes of professional conduct of Nova Scotia, New
Brunswick and Prince Edward Island make no reference to any
specific limitation on the use of endorsements and testimonials in
lawyers' advertising (though general rules concerning
advertising, marketing and seeking business still apply). The Law
Society of British Columbia permits lawyers to use endorsements in
their advertising as long as they are "true and
verifiable". All other Canadian Provinces have based their
ethical codes on the Federation of Law Societies Model Code of
Professional Conduct which warns against including
testimonials or endorsements "that contain emotional
appeals," stating that doing so "may" constitute a
violation of lawyers' ethical obligations. Although certain
limitations have been prescribed in the rest of Canada, Quebec
remains the only province that outright prohibits the use of
endorsements and testimonials.
The breach of article 145 by Quebec lawyers is as widespread as
it is overlooked. Many of Quebec's legal professionals are
choosing to include endorsements on their LinkedIn profiles.
However, to our knowledge, no lawyer has yet been reprimanded by
the Syndic du Barreau (the supervisory body which monitors
professional practice and ethical compliance) in connection with
their social media profile breaching Article 145. Nonetheless, when
the office of the Syndic du Barreau, was contacted for their
position on the matter, a representative asserted that the text of
the Code is clear and that in no circumstance are public
endorsements or statements of gratitude allowed.
This issue affects a significant percentage of lawyers and has
broader implications about the practice of law in the age of social
media. Article 145 will surely be examined in more detail as social
media advertising becomes increasingly relevant, and lawyers'
use of LinkedIn will likely attract serious debate. Until the
Barreau du Quebec reconsiders the inclusion of Article 145 in the
Code, or a court pronounces on the article's applicability, it
would be wise to exercise prudence when using professional
networking social media.
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