TikTok: Risk of inadvertent lawyer-client relationships
Lawyer-influencers or ‘lawfluencers’ are opting for “quantity over quality” in their video posts, putting viewers at risk of receiving advice that is “rushed, poorly researched or even inaccurate”, researchers have found.
The nature of their advice was “significantly influenced by algorithms”, with those posting regularly receiving more views, subscribers and “ultimately platform income”.
In Lawfluencers: Legal Professionalism on TikTok and YouTube, published in the US by the Georgetown Journal of Legal Ethics, Anthony Song and Justine Rogers, a research fellow and associate professor at the University of New South Wales in Sydney, said consumers who viewed content from lawfluencers were also at risk of paying higher fees.
They described lawfluencing as “lawyers scoping out new contexts—video-based social media platforms—within which to practise law, share their expertise, experiment with their professional identity, create a community and social capital, and, ideally, earn money”.
In some cases, lawfluencers could even “build a new career entirely”.
However, ethical risks, such as “inadvertent lawyer-client relationships” were heightened on “high interaction platforms” like TikTok and YouTube.
There was a further risk that marketing posts would be construed by viewers as legal advice or implied retainers.
While effectiveness in influencer engagement hinged on creating relationships with viewers, that relationship was not protected in the same way as a lawyer-client relationship.
“Moreover, professional work has also been associated with other aspects of quality, such as time and attention, and yet lawfluencers, with thousands or even millions of followers, are unlikely to achieve these benchmarks.
“Because of the ease and (often) shortened format of video content today, this advice is very likely to be ‘off the cuff’.”
The researchers said the TikTok algorithm favoured creators “who post frequently (particularly with frequently used hashtags) at least once a day, with some marketers advising ideally five posts daily”.
They went on: “Those who post regularly are highlighted by the algorithm; receiving more views, subscribers and ultimately platform income.
“Consequently, by design and platform incentive, as lawfluencers opt for quantity over quality, advice is more likely to be rushed, poorly researched or even inaccurate.”
Researchers said disclaimers were essential to ensure viewers understood that interactions were not intended to create a lawyer-client relationship, that subject matter was outside their expertise, and to state clearly that none of the content amounted to ‘legal advice’.
Meanwhile, lawfluencers who were not qualified to practise could only provide ‘legal information’, but the line between that and legal advice “could easily be blurred” on social media.
Interactions could also “raise questions” about the lawyer’s fiduciary duties, including the duty of confidentiality (which could apply even without a retainer), as well as the client’s rights to privacy and informed consent.
On fees, researchers said consumers who chose a lawfluencer for legal advice “may be more likely to be overcharged or at least charged more than they would with another lawyer providing the same level of service”.
Further study was needed, but “based on how influencers are usually able to command a ‘price premium’ for their brand”, it was logical that “lawyers too could charge higher fees than they could before having a lawfluencer profile”.
Lack of restraint (whether staged or not) could expose individual lawfluencers to harm, such as “negative comments from viewers and/or judgements from future employers and colleagues”.
Researchers said the arrival of lawfluencers marked a “significant change”, not only “because of its varicoloured implications for professionalism but because it is change situated within (video-based) social media platforms, largely under the control of Big Tech”.
They added: “The hope is that knowledge influencers (including lawfluencers) can act as the trusted voices within the crowd, filtering out the unreliable sources and information while continuing to ethically adhere to their professional duties.”
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