Here is a recent Daily Record column. My past Daily Record articles can be accessed here.
New York Bar on Whether Lawyer YouTube Videos Constitute Advertising
Lawyers have been advertising online for more than two decades. As technology evolves, the methods of online advertising also change. New social media platforms are launched, and the features of existing sites are regularly modified.
Because the online world is ever-changing, it can sometimes be difficult for lawyers to navigate the ethical issues that arise when engaging online, especially when it comes to attorney advertising. Some interactions can be deemed personal, while others are professional. And, not all professional interactions necessarily equate to attorney advertising.
As a result, it can sometimes be difficult to determine whether attorney advertising rules apply. Fortunately, bar association ethics committees regularly issue opinions as to which online interactions constitute attorney advertising and thus require the appropriate disclaimers.
For example, last week, the New York State Bar Association Committee on Professional Ethics handed down Ethics Opinion 1251, which focused on whether educational YouTube videos released by lawyers constitute lawyer advertising.
At the outset, the Committee confirmed that lawyers are permitted to educate the public on legal topics, and that, generally speaking, doing so does not constitute attorney advertising: “It is not unethical for a lawyer to write articles, give lectures, or write a blog about topics of general or specific interest, including the law.”
The Committee then turned to educational YouTube videos, likening them to law firm newsletters. It explained that the application of a three-prong test previously established to determine whether newsletters constituted advertising was appropriate in the context of analyzing the content of attorney YouTube videos. That test required an assessment of “the content of the communication, the intent (purpose) of the communication, and the targeted audience of the communication.”
Next, the Committee provided examples of educational YouTube content that would not require an attorney advertising disclaimer: “To the extent that the YouTube videos provide general legal information for the public about ‘being a lawyer in the U.S.’ and ‘work-life balance,’ the videos would not constitute advertising.”
In comparison, as the Committee explained, videos focused on promotional news about the lawyer or law firm fall under the ambit of lawyer advertising: “To the extent, however, that the YouTube videos include information and news about the lawyer and her law practice for the primary purpose of retention of the inquirer, they would constitute advertising.”
The Committee also provided clarification regarding other ethical issues that may arise even when the YouTube channel and videos do not amount to attorney advertising.
First, the Committee advised that “publishing and linking the inquirer’s name and contact information with the channel will not, in and of itself, push the content of the videos across the line into advertising.”
Second, the Committee advised lawyers to tread with caution when responding to any comments to the videos and provide only general information rather than individual legal advice in order to avoid the risk of inadvertently creating an attorney-client relationship.
Finally, the remaining issue addressed related to the possibility that a law firm might link to the YouTube channel or video from the firm’s website or other types of online firm advertisements. According to the Committee, in that situation, it may be appropriate to label the videos as lawyer advertising.
This opinion provides lots of helpful advice, so I would suggest you read it in its entirety, especially if you’re licensed to practice in New York. If you’re a New York lawyer, should your firm choose to use YouTube or other video platforms to share educational videos, make sure to follow the guidance from this opinion. Finally, if you’re still unsure whether an attorney advertising disclaimer is required, I would suggest you include it. As I always say, better safe than sorry.
Nicole Black is a Rochester, New York attorney, author, journalist, and the head of SME and External Education at MyCase law practice management software for small law firms. She is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a Thomson Reuters treatise. She writes legal technology columns for Above the Law and ABA Journal and speaks regularly at conferences regarding the intersection of law and technology. You can follow her on Twitter at @nikiblack or email her at firstname.lastname@example.org.