An attorney panel earlier this month shared the joys and hazards of lawyers addressing the general public through social media.
A hat tip to Mississippi attorney Kye C. Handy, Balch & Bingham, for introducing me to California attorney and influencer Reb Masel on TikTok, the J.D. genius behind Reading Iconic Court Transcripts and other legal commentary.
@rebmasel i dedicate this one to Kohl’s cash #transcripts ♬ original sound - reb for the rebrand
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| Reb Masel's Rebuttal (Spotify, Apple, YouTube) |
Handy served on an ethics panel at the Next Generation and the Future of Business Litigation program of the Tort Trial & Insurance Practice Section (TIPS) of the American Bar Association (ABA) at the 2024 ABA Midyear meeting in Louisville, Ky., earlier this month.
A key takeaway of the panel for attorneys: be careful you don't create an attorney-client relationship through social media posts. If giving legal advice, disclaim, disclaim, disclaim.
Florida attorney Richard Rivera said that ethical obligations may arise merely from a viewer's subjective belief that an attorney-client relationship exists. I presume there is a reasonableness check on that, but the objective measure would be lay perception, not the knowledge and experience of the attorney. Thus, a social media post can trigger an attorney's duties of confidentiality and timely response to questions.
Accordingly, Washington attorney Matthew Albrecht warned attorneys to keep up with their inboxes in all media. If a viewer or listener reaches out through a web form, social media direct messaging, etc., asking a question in response to a post, failure to respond promptly can be an ethics violation.
Moreover, an attorney must be wary of questioners who overshare, Albrecht said. They might post comments on a public website that compromise their cases, and the attorney may be obliged to delete the comments to protect the prospective client. A questioner also might provide information that puts the attorney in conflict with prior or existing clients. So an attorney with any online presence should have and adhere to a careful policy for receiving and processing incoming communications.
I wish I could count on a response from a doctor's office when I ask a question. Clearly, the bar for attorneys is higher.
Probably needless to say, some attorneys give advice in mass media that might be accurate in context and not run afoul of ethics rules, but might at the same time invite trouble in problematic misunderstanding. For example, many online videos present Texas lawyers schooling viewers on the use of force in defense of property under the state's generous castle laws. Handy shared one video by a lawyer who described a property owner vs. trespasser confrontation in which the property owner might lawfully "beat her ass."
To inform professionalism, Handy recommended to law students and new lawyers the podcast Young Lawyer Rising from the Legal Talk Network, an ABA partner.
The ABA TIPS panel comprised Albrecht, Handy, Rivera, and D.C. attorney Josephine M. Bahn.
