Megan Zavieh also contributed to this article.
Open your Twitter or Facebook feed and you are sure to see videos. Savvy lawyers have joined in, opting to use video as a marketing and educational tool on their websites and in their social media posts. (Think lawyer videos can’t be creative? Check out Bryan Wilson and rethink that premise.)
Video does a beautiful job of conveying messages and information, but its use by lawyers raises ethical issues not directly addressed by most states’ rules of conduct.
Lawyer Videos Are Their Own Creature
Are law firm videos similar to TV commercials? Hell no.
It’s important to take a moment to acknowledge the irreparable harm personal injury firms and their daytime TV ads have caused. An entire generation of lawyers have grown up believing that there is only one question that matters in a lawyer’s ad: “Have you been injured?”
Law firm television commercials are quite possibly the most obvious definition and example of lawyer advertising because they tend to include 30-60 second segments of a lawyer (or an actor portraying a lawyer). There’s no educational value to the ad aside from introducing the public viewers to the existence of the firm.
While it was not always the case, such ads are now clearly accepted under legal ethics rules. ABA Model Rules 7.1-7.4 lay out the rules for attorney advertising and certainly allow for lawyer advertising through recorded or electronic communication, including public media. Of course, such communications are still subject to rules prohibiting misleading or false advertising. But, lawyer digital videos are so much more robust than daytime personal injury ads that more guidance is needed for how to handle those videos.
An example of what many lawyers create with video can be seen in Karima Gulick’s introduction video describing how she helps clients protect their intellectual property:
Are Lawyer Videos Like a Legal Blog?
One particularly compelling type of law firm video is the “how-to” video. These are educational videos that allow lawyers to showcase their knowledge and expertise in their practice areas. Armine Bazikyan’s channel discussing issues with trusts and estates law is a good example.
Informational videos posted on the Internet are subject to the advertising and solicitation rules if they encourage viewers to hire the lawyer.1 In California, Ethics Opinion 2012-186 discussed when social media posts crossed the line into attorney advertising, and it states that if the post mentions that the attorney is available for employment, then the advertising rules apply. This precept can be extrapolated to video: assume that if the video states availability for employment, then it too is subject to all rules concerning attorney advertising.
In “how-to” videos, lawyers can explain a specific aspect of their practice area, can educate viewers on the legal process, or can clarify the legal requirements of a particular matter. Because these types of videos are more informational and educational in nature, they can be easily compared to legal blogs. So, we should consider state rules on blogs when using video. Given the relatively fine line between a legal blog giving information and one soliciting employment (after all, why else is the lawyer providing the information if not to be recognized as someone to be hired in that area of law?), it is safest to assume that blogs are subject to the advertising rules as well.2
What Video Can Do That Other Media Cannot
Video has gained so much ground in recent years because it is extraordinarily powerful. Ethics regulators have noted its power when addressing the specific question of dramatizations. Just as we would rather watch a movie made about a trial than to sit and watch the actual trial itself, so too will a video dramatization convey a more intense and exciting version of a lawyer’s message than a simple text post or photograph.
Because of video’s ability to incorporate dramatizations, images, and sound effects, there are increased concerns that these lawyer videos border on deceptive and misleading. Certain jurisdictions have flat-out prohibited the use of videos with dramatizations, images, and sound effects while others have required the inclusion of disclaimers and labels. 3
Of course, video can do something that other media cannot that has nothing to do with actors or scripts: it can introduce the world to a lawyer who would otherwise be the typist behind a blog post. It can bring a lawyer into the client’s device just like the original TV ads brought personal injury lawyers into the hospital rooms of sleepless injured patients.
Handling Video Ethically
Given this background and the overarching concerns regarding lawyers’ use of video, what is an enterprising lawyer to do when recording and posting a video online?
1. Don’t Post Misleading Content
First and foremost, ensure that your video content is not misleading. If you have a dramatization, be extra careful and check your state’s rules for prohibitions or specific steps required before using it. Consider your content from the perspective of the general public when evaluating whether anything about it (the statements in it, the images, the overall impression, etc.) could be deemed misleading by someone watching the video for the first time with no specific context.
2. Don’t Create an Attorney-Client Relationship
Make sure that your video would not give rise in a reasonable person the belief that they have formed an attorney-client relationship with you. Wisconsin addressed this issue directly in Wisconsin Informal Ethics Op. EI-10-01 (2010). It said that viewing a lawyer’s webinar online does not create an attorney-client relationship if the lawyer states at the outset of the webinar that no such relationship is being formed and the viewer affirmatively accepts this statement (such as by checking a box before the video will play).
In all likelihood, most lawyer videos played online will have no such affirmative acceptance of a term before the video plays. (Think of your Twitter feed or a blog you may visit to view a lawyer discussing a topic of interest.) However, Wisconsin’s reasoning supports a less overt acceptance of terms of watching the video. As Wisconsin stated, “[I]t would be unreasonable for a viewer to believe that the webinar constitutes an agreement to provide legal services” due to the fact that the video contains general non-specific information and there is a disclaimer in addition to the affirmative agreement under its hypothetical.
So, to make sure your video is not seen as creating an attorney-client relationship, be sure to state at the beginning of the video (or in captions) that no relationship is formed by the viewing of the video.
3. Use an Effective Disclaimer
Disclaimers are a lawyer’s friend, and when in doubt, a disclaimer is a very good idea. Knowing that the regulators have not spoken much directly on lawyer videos but that there are concerns, a disclaimer seems like a wise move when posting video. Depending on what you’re discussing in your videos, you will likely need to include certain disclaimers like:“This video is intended for educational purposes only and does not establish an attorney-client relationship,” or “If you need assistance with a specific legal matter, be sure to contact an attorney.”
The lack of specific ethics guidance on videos leads to a question that does not exist when placing disclaimers on written material. Where should your disclaimers appear? At the beginning of your video or the end? On screen or in the captions/description?
North Carolina’s Rule 7.1(b) gives guidance for dramatizations, as it says that a dramatization would be misleading unless it “contains a conspicuous written or oral statement, at the beginning and the end of the communication, explaining that the communication contains a dramatization and does not depict actual events or real persons.”
This type of specific rule can be applied broadly when creating video, in an attempt to stay on the safe side of the rules. So, if you were to post a video which contains useful information about a legal topic which might reasonably lead a member of the public to contact you to hire for legal services, check your state’s rules to see if it has any specific guidance about the placement of the disclaimers in dramatizations. Aiden Kramer Law posts a disclaimer at the opening of her video and discusses limits on what she can do live on her introduction video on her YouTube channel.
If your video is going to be placed on a website (such as your own blog) where you can control the text around it, that would also be a reasonable and logical place for disclaiming language in the absence of specific state guidance.
The very characteristics that make videos such powerful relationship-building and marketing tools are what the ethical rules are trying to discourage. Video is persuasive and convincing in conveying messages to viewers. Keeping in mind the regulators’ concerns and the special characteristics of video will help you navigate this emerging area as we await more specific guidance from regulators.
Consider Virginia’s Hunter v. Va. State Bar, 744 S.E.2d 611 (Va. 2013) (a legal blog is subject to advertising rules) and New York State Ethics Op. 967 (personal non-legal blog written by individual who happens to be a lawyer not subject to advertising rules). ↩
See Florida Rule 4-7.15 (dramatizations appealing to emotions unduly manipulative); North Carolina Rule 7.1(b) and Indiana Rule 7.1 cmt. 2 (dramatizations require labels); and Texas Rules 7.02(a)(7) and 7.04(g) (lawyer needs to do own ad and no actors should be used). ↩