Employers often have confidentiality policies that prohibit employees from disclosing the identity of the company’s clients, business partners, or vendors. Some industries and professions are subject to regulations or ethics rules that prohibit such disclosure. LinkedIn’s “recommendations” feature can put a bit of a new spin on an old problem.
LinkedIn allows users to write recommendations for other users. Most social-media pros advise users not to make a recommendation unless you do actually know the person you are recommending and would actually recommend him or her if asked offline. Excellent advice.
But there’s more to it in some cases. Take, for example, me. As a lawyer, I am bound by certain ethical rules both in and out of the office. As all rules tend to be, the rules of ethics and professionalism can, at times, be quite nuanced and require more than a passing familiarity in order to comply. One such rule is confidentiality.
A lawyer may not disclose that he represents Client without Client’s express permission. Only the client can decide to waive this right. Here’s a social-media scenario where this can become somewhat complicated:
Lisa Lawyer is an employment lawyer. One of her clients is Acme Co. She works frequently with Acme’s HR Department and Senior Executives, who consult her for legal advice relating to employees and workplace issues. After years of representing Acme, Lawyer has developed close relationships with several of Acme’s HR executives.
One of the HR executives sends Lawyer a request for a LinkedIn recommendation. Lawyer thinks very highly of Eric Executive and is able to recommend him without reservation–he’s knowledgeable, professional, has a positive attitude, etc. Lawyer logs into LinkedIn to write the recommendation for Executive. To do so, though, it first asks Lawyer to select from her “Experience,” how she knows Executive. Her “Experience” list includes her work history, including her employment as an associate in Firm Fancy.
In order to send the “request for recommendation,” Executive had to select how he knows Lawyer and is given the choices from his own Experience List. Executive indicated that he “had done business with” Lawyer while he was “HR Director at Acme Co.” Now, if Lawyer selects “Associate in Fancy Firm” from her Experience List, the recommendation will display: Lisa Lawyer, Associate in Fancy Firm, has done business with Eric Executive, HR Director at Acme Co.
And, just like that, the lawyer has breached her ethical obligation not to disclose the identity of her client.
And don’t be fooled into thinking that, because Executive requested the recommendation, he’s given her the go-ahead to disclose the attorney-client relationship. Not so. Acme Co.–not Eric Executive–is the client. And only Acme Co. has the right to authorize the disclosure. Even if Executive was the owner of Acme and had the authority to authorize Lawyer to disclose the attorney-client relationship, Lawyer would be best advised to confer with Executive before responding to the request to make sure that he is fully aware of her concerns.
In the social-media context, confidentiality is one of the ethical issues that seems to come up most often–lawyers included. There are all sorts of stories about confidentiality breaches and leaks when employees post information they shouldn’t online. And confidentiality breaches aren’t committed only by bad-intended employees. The real danger is the accidental or innocent disclosure. A disclosure is still a disclosure, remember; and, once information is published, it cannot be retracted, so intentions become largely irrelevant. Social media is a new media and presents lots of old questions in new ways.
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