Microsoft’s plans to acquire LinkedIn for $26.2 billion was the talk of the tech world late last month. The combination of these behemoths is going to give Microsoft access to all LinkedIn’s data. Microsoft’s CEO has given some examples of the potential synergies that will result, like “getting a feed of potential experts from LinkedIn whenever Office notices you’re working on a relevant task.” But legal ethics issues loom, involving our duty of confidentiality under Rule 1.6.
Aim: monetizing your links
With its 433 million members, LinkedIn is the #1 professional networking site for lawyers: 93-99 percent of lawyers across firm-size categories have profiles, according to statistics from the ABA and others.
The main thing that Microsoft gets out of the LinkedIn deal is data about you. As a writer for Forbes noted, LinkedIn “knows where people work, their skills, ambitions, who they went to school with and what interest groups people share. LinkedIn knows about people better than Microsoft does. Or did.” Now, Microsoft will be able to combine that data with all the many products you use, from your Outlook calendar to Skype to Word.
What’s the money angle? LinkedIn’s CEO described how the combination could give “sponsored content customers the ability to reach Microsoft users anywhere across the Microsoft ecosystem.” In other words, to advertise to you in a totally targeted way as you work with any Microsoft product in its “ecosystem.” Pop-up ads for a treatise when we’re working on a brief in Word? That would be a stupid move, notes legal tech guru Bob Ambrogi, and hopefully Microsoft won’t go there.
What are the ethics issues?
But this combination does raise some possible ethics issues, centering on your duty of confidentiality.
The confidentiality rule says that you “shall not reveal information relating to the representation of a client,” with very limited exceptions. The duty includes not disclosing the identity of your client, which in many instances can be extremely sensitive.
In a good analysis of the issue, ethics educator Stuart Teicher points out that leveraging data in our Outlook calendar can cross that exact line by revealing our client relationships. Teicher posits that on Outlook, Microsoft “might see a potential client introduction (which lists Pete Smith as present), a court appearance (which lists Pete Smith as present), and a meeting for settlement purposes (which lists Pete Smith as present). It’s not going to be too tough for the Microsoft bots to figure out that Pete Smith is your client.”
Or, says Teicher, looking at Outlook might show that you are heading to Chicago. Microsoft might “then cross reference our LinkedIn connections and send a message to one of them that says something like ‘Your connection Bruce Kramer is going to Chicago next week. Why don’t you look him up?'” If the purpose of your trip is to confidentially scout out a potential acquisition on behalf of your client, your client doesn’t want data out there from which the seller or its agents can figure out what your interest might be.
Keep your eyes open
Nothing like this has happened yet — the mega-combo has just been announced, after all — and the ethics issues are only potential ones. But this development bears watching. As Teicher correctly points out, that’s the way to fulfill your duty of competence, which includes staying up to date on changes in the law, “including the benefits and risks associated with relevant technology.”