Six Ethical Pitfalls to Avoid on Lawyer TikTok

Zuckerman Spaeder LLP

Zuckerman Spaeder LLP

TikTok At first glance, TikTok might not have obvious utility to the working professional. After all, its pandemic-era popularity seems to be the product of Zoom-schooled and homebound Gen Zers who flocked to the app as a new pastime and socialization tool. But over time, TikTok’s endless stream of short videos evolved to attract a variety of professionals seeking to market themselves and educate the public in a new format.

Is there a role for lawyers on such a trendy app? The law is not a particularly trendy profession. Lawyers’ ethical obligations and risk-averse personalities tend to impede novelty in professional messaging. But some lawyers have found a place for themselves on “Lawyer TikTok” (or #LawyerTikTok). Lawyers who choose to use TikTok for professional activities should be hypervigilant about these six ethical pitfalls.

1. Inadvertently creating attorney-client relationships with followers.

When a lawyer provides legal guidance or advice in a TikTok, users might reasonably believe they have an attorney-client relationship with that lawyer. Many lawyers on TikTok offer advice on what their followers should do in different types of legal situations, such as police encounters. If the advice is specific enough, it could create an attorney-client relationship.

The possibility of an attorney-client relationship is even more realistic when lawyers respond to individual comments on their videos. In many comments sections, users ask lawyers questions about specific legal scenarios they are facing. And sometimes, lawyers answer. Although providing a quick and dirty answer to an anonymous user’s question may seem like harmless education, sufficient specificity might actually give rise to an attorney-client relationship.

And if an attorney-client relationship is inadvertently formed through TikTok interactions, it would have been done improperly without first performing a conflicts check and perhaps after impermissibly providing legal advice on a public forum.

Disclaimers can mitigate some of these concerns. In addition to other measures, lawyers should consider including statements like “this is not legal advice” on videos and captions. Analyzing followers’ real-life legal scenarios in the comments section is best avoided altogether.

2. Revealing client confidences.

Videos that go viral tend to be outrageous. Clients and cases are sometimes outrageous, but lawyers—at least those abiding by their ethical obligations—should not be. Lawyers who want to discuss interesting clients and cases on TikTok are playing with fire, since—subject to a few exceptions—lawyers are prohibited from revealing information about the representation of a client. This duty of confidentiality protects much more than just the incriminating or embarrassing information. As to what portions of a client matter it covers, a good rule of thumb is: everything.

Nevertheless, many lawyers use TikTok to recount specific conversations they’ve had with clients. Sometimes these lawyers share extremely sensitive information about past matters with enough identifying details that the average internet sleuth might just link it back to the client. But it’s not just the egregious examples that breach the duty of confidentiality. Absent informed consent from the client—a difficult standard in this context—lawyers must always avoid revealing client confidences in public commentary, even if the information is publicly known or seemingly without consequence to the client.

3. Getting caught up in TikTok trends and entertainment value at the expense of your ethical obligations.

TikTok’s original purpose as an entertainment tool is built into the platform’s DNA and dictates which TikToks and content creators go viral. Successful TikTokers swiftly create content that aligns with the rapidly changing trends on the app. Lawyers keeping up with TikTok trends might succeed in creating entertaining and topical TikToks that reach millions of users. But in this hurry to be seen, lawyers might also inadvertently violate their ethical obligations.

Anything that combines humor or sarcasm with legal advice should be approached with extreme caution. Content creators often have very little insight into the viewers any given video will reach. With that in mind, lawyers should consider a wide range of reasonable interpretations viewers may draw from their videos before uploading anything to TikTok. For example, what one lawyer perceives as an obvious joke might be received by a layman as a legal endorsement to commit a specific crime. And, as every lawyer should know, lawyers cannot advise clients to commit crimes. Just one miscalculated joke could create an avalanche of exposure.

4. Providing inaccurate legal information.

Lawyers who put information on social media must ensure that it is accurate. And that obligation doesn’t end after posting the content. Lawyers who maintain social media accounts must continuously monitor the information they post for accuracy. Laws and legal precedents change. TikToks that become legally obsolete should be deleted.

Relatedly, lawyers may be under an obligation to moderate the comments sections of their TikToks, even if they do not add comments of their own. A lawyer could be responsible for other users’ comments that offer incorrect legal information or bad legal advice if the lawyer has the power to moderate those comments but fails to do so.

Generalized advice—which might avoid establishing an attorney-client relationship—can violate an ethical obligation if it misleadingly comes across as universally applicable to the audience, regardless of the factual variations of their situations.

Lawyers on TikTok should also be mindful of the fact that their followers might not be in the same jurisdiction as them. A lawyer could be an expert on California criminal procedure, but that might not carry any weight in Louisiana. Lawyers on TikTok should be crystal clear about the jurisdictional limitations to their legal commentary.

5. Making a lawyer advertisement that does not meet ethical requirements.

Some lawyers on TikTok discuss past case successes, including the large verdicts they’ve won for their clients. But slight variations in wording can turn a lawyer’s celebration of success into a lawyer advertisement that might not comply with the relevant lawyer advertisement rules, which vary significantly across jurisdictions. Lawyers who do not intend for their TikToks to be advertisements should carefully craft their videos to avoid making unintended solicitations. Lawyers who intentionally use TikTok as an advertising tool should make sure their communications comply with all governing advertising rules.

6. Not knowing which jurisdiction’s ethical rules govern or what those rules are.

Rules of professional conduct, including their interpretations, vary from state to state. If a lawyer reaches audiences beyond state lines (which is likely on such a popular platform), then that lawyer might be subject to those jurisdictions’ rules too—even if the lawyer is not an admitted member of those bars. Knowing which jurisdictions’ rules apply and what those rules are will go a long way towards avoiding the most common pitfalls on Lawyer TikTok.

Perhaps the best way to kill the creative spirit of TikTok is to analyze whether its use complies with principles of legal ethics. But there is no social media exception to the rules of professional conduct. Lawyers implicate these rules every time they comment publicly on legal topics or solicit clients. So feel free to attempt the latest TikTok choreography trend, but tread very carefully on Lawyer TikTok.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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