By and -

Snapshot

  • ‘Lawfluencers’, social media lawyer-influencers, are permeating online media platforms and raising questions about their impact on legal systems.
  • Lawfluencers operate in a different context and face different risks, constraints and incentives which indicates the need to consider the novel issues of this new breed of lawyer and legal practice.
  • In particular, lawfluencing creates new challenges, but also opportunities, to pervasive issues such as access to justice, quality control, ethics and confidentiality.

There is a growing group of lawyers who are now ‘influencers’. These lawyers, mostly in America but now in Australia too, are using online platforms such as YouTube and TikTok to build a following by sharing their expertise and identities in the form of video content.

This article looks at these lawyer-influencers or ‘lawfluencers’: what they are up to, what is behind their emergence and what their arrival means for lawyers’ professionalism.

Influencers and lawfluencers

An influencer is someone who shares their knowledge and lifestyle on social media to build themselves as a brand and accumulate a following for commercial gain and/or cultural capital.

Influencers generate revenue through engagement: from platform ‘payouts’, once a certain number of viewing hours are met, and from the number of views their content gets. They also make money through advertisements, embedded in the videos, and affiliate links. Whatever they are selling (whether a product, service or both) influencers are also selling an identity that responds to the needs and interests of target audiences.

Influencing was initially centred on lifestyle topics and within consumer industries such as travel, beauty and gaming. However, so-called knowledge influencers (such as doctors, dentists, accountants and now lawyers) share technical information and expertise often interwoven with personal posts or humorous anecdotes about their professional life.

Lawfluencers use these video-based social media platforms to practice law, share their expertise, express themselves in creative ways, create a community and ideally earn money. For some, it means building a new career entirely.

Context, workings and drivers

Influencing is a branch of digital marketing. Digital marketing is, broadly, the use of online technologies to acquire customers, build customer preferences, promote brands, retain customers and increase sales. But influencing also has elements of sociality, community and performance that make it different from other forms of marketing. Influencing requires mastery over certain technological and self-presentation skills.

There are distinct drivers behind, and technological features shaping, the appearance of influencing in law.

These include:

  • the marketisation of the profession, including the dismantling of most restrictions on advertising;
  • the internet revolution: in short, we are tethered to our phones and now use the internet to consume, including professional services. From the other side, everyone, including lawyers, can broadcast themselves online if they wish to;
  • wider marketing trends, including the current ‘authenticity’ fad, which suit the sorts of activity these platforms and their audiences demand;
  • the emergence of side hustles: influencing can provide an additional income against rising costs of living, inflation and other financial pressures.

Meanwhile, much of how any influencing is playing out hinges on the mechanics of the platforms themselves. One fundamental aspect of these platforms, such as YouTube and TikTok, is the immediate feedback loop between content creators and their audiences which, over time, can build into communities.

In addition, influencers are incentivised by the platforms to support the platforms’ business goals, in effect, to produce content most likely to engage and keep viewers glued to the platform. Where an algorithm signals that a particular topic is trending, top influencers will notice the shift, confirm it through their own data analytics and adapt their content to match. To maximise engagement, they will also use common digital marketing strategies, such as ‘clickbait’ titles (sensationalist names for their videos); ‘thumbnails’ (catchy promotional images); engaging and exaggerated captions; and/or metadata such as hashtags.

Types of lawfluencing videos and their significance

There are three main types of videos lawyers are creating to self-represent, promote and market themselves. These are:

  1. legal education (‘law explainers’);
  2. news and legal commentary (for example, on celebrity legal cases); and
  3. video blogs (‘vlogs’, such as ‘a day in the life of a lawyer’).

To foreshadow later discussion of ethics risks, in all these video formats, the lawfluencers may also be offering legal advice.

As media scholars have observed, influencers who are also professionals must decide to what extent their online persona aligns with their traditional professional identity (that is, as a trusted expert with exclusive knowledge) versus their amateur image (an authentic, approachable personality to which followers can relate).

As this indicates, lawyers are not making these types of videos as one-way advertising (of which traditional legal video marketing is an example), but rather as a two-way interaction to build a loyal and engaged audience or community. This is relevant for two reasons.

First, the lawyer’s activities and influence are based not just on their own preferences, but also by their audience’s desires, which are in turn shaped by broader trends in online content and viewing habits.

Second, once the lawyer’s community is of a certain size, they can monetise the videos and earn money regardless of whether the viewers themselves ever pay for their legal services. In other words, influencing does not need to be a feeder into a lawyer’s traditional job for them to earn income from it.

Is lawfluencing welcome?

Access to justice

While the motivations of lawyer-influencers are likely mixed, including to express themselves and to make money, much of the content is designed to educate viewers on the law, their legal rights and the legal system. Some scholars see online technologies as the primarily feasible solution to the crisis of access to justice.

Indeed, lawfluencers’ ‘explainer’ videos are hugely popular. For example, U.S. husband and wife lawyers, Maclen and Ashleigh Stanley, provide ‘bite-sized’ explanations of legal jargon on TikTok (@the.law.says.what) and also longer educational videos via YouTube. While they originally started their TikTok in 2021 to promote their book about the law, they now have over one million followers. It is also common for lawfluencers to focus on their specialisation. U.S. lawyer, Limor Mojdehiazad (@lawyerlimor), has built an audience of nearly half a million on TikTok by creating videos on family and divorce law.

Lawfluencing might also be closing gaps by giving members of the public a greater selection of lawyers from which to choose, including low-cost options. In this way, lawfluencing seems to support the consumerist argument that we need to increase the range of opportunities for and means by which consumers can access legal services.

But these issues are not straightforward. Consumers may find it difficult to evaluate the qualifications and expertise of lawfluencers. Wily lawyers may take advantage of the unregulated nature of the internet to fake or inflate their expertise. Moreover, consumers might also be underequipped to assess risks that might attach to low-cost work. Furthermore, and by contrast, if they choose an influencer, consumers may actually end up paying more than they would with another lawyer providing the same level of service simply because the influencer may have more elastic demand for their services. These are speculative points that require further study but, based on how influencers are usually able to command a price premium for their brand, it is logical to assume lawyers could also charge higher fees after establishing a lawfluencer profile.

Influencing does not need to be a feeder into a lawyer’s traditional job for them to earn income from it.

Lawyer-client relationship: ethics risks

Retainers

Lawfluencers’ engagement with the public via their videos and direct comments (including on their viewers’ comments) gives rise to certain risks. These could include, for example, lawyer-client relationships being implied, or an assumption of a duty of care, where it is reasonable that the alleged client thought there was one in place. While this might seem unlikely to be found by a court in the circumstances, it is a real problem. New York lawyer, Alex Peter (@loloverruled), for example, felt forced to add a warning to his TikTok bio (‘not your lawyer’) after many of his followers referred to him as ‘our Lawyer’ or ‘their Lawyer’ and even confessed crimes to him over TikTok direct message.

Such ethical risks can be heightened on these high-interactivity platforms. To illustrate how more direct communications occur, in one TikTok video by Miami lawyer, Caesar Chukwama (@iamcaez), titled, ‘Can you get a DUI for sleeping in your car?’, Chukwama provides general legal advice by telling viewers to turn their car off, leave the keys out of reach and sit in the passenger seat until no longer inebriated. Chukwama then responds to direct comments from viewers including:

Follower 1: How easily would that get thrown out in court tho [sic]?

Caesar Chukwama, Esq. (Creator): Legally wouldn’t get thrown out cause technically it’s still a DUI. But in trial in front of a jury, different story.

Follower 2: If I put my keys in a location outside the vehicle before sleeping in it, is that ok?

Caesar Chukwama, Esq. (Creator): Yes provided you cant quickly get it and operate your vehicle. [sic]

This type of communication seems like direct and customised advice but this relationship is not protected in the same way a lawyer-client relationship is.

Client confidentiality, right to privacy and informed consent

In addition, such online interactions between lawyers and members of the public can possibly raise questions about lawyers’ fiduciary duties, including the duty of confidentiality (which can apply even absent a retainer), as well as clients’ rights to privacy and informed consent.

For example, Californian TikTok lawfluencers, David Pourshalimi and Ben Perlmutter (@pandpfirm2.0), are known for uploading post-trial ‘victory’ videos with their clients outside of the courthouse in which they outline the trial details, lawyer strategies and sentences received. While these videos act as client testimonials in a seemingly more authentic, amateurish way than traditional advertisements, they also publicly associate clients’ faces with their alleged crimes in a way that leaves a permanent imprint on the internet. Besides privacy and confidentiality concerns, there may also be issues around whether a client fully consents to these videos if they are asked immediately after trial while they are possibly ‘riding off a high’ after a successful outcome.

Another consideration arises in the use of office vlogs, one of the main types of video blogs for professionals. Here, there is a possibility of videos inadvertently including computer screens and/or documents containing clients’ confidential information.

Competence and care

Professional work has long been associated with markers of quality such as time and attention. However, lawfluencers may have more difficulty achieving these benchmarks with thousands or even millions of followers seeking their information and advice. Of course, high quality does not necessarily mean bespoke but what is novel is the context in which this advice in particular is given. When lawyers engage in these platforms the nature of advice given, and whether it strikes the appropriate balance between efficiency and customisation, is significantly influenced by algorithms.

More specifically, the easy and often-shortened format of video content means advice is more likely to be ‘off the cuff’ and possibly outside the scope of lawfluencer’s expertise, especially if they are aiming to create content to match whatever is trending at the time. The TikTok algorithm, for example, favours and highlights creators who post frequently (at least once a day). By design, influencers may opt for quantity over quality, rushing out videos based on poor research and/or possibly even containing inaccurate or outdated information.

Lawyer wellbeing

Lawfluencing might represent a welcome outlet for lawyers to creatively express themselves and enjoy greater work satisfaction. The focus on authenticity could be a positive change for lawyers who must otherwise self-present in rigid, deferential ways.

However, platforms also encourage oversharing and disinhibition. This lack of restraint, whether staged or not, can also expose individual lawyers to harm such as negative comments from viewers and/or negative judgments from employers, future clients and other firms. To some extent, responses from firms or clients might reflect unfair and undesirable attitudes where firms and the profession should instead directly address this new activity.

A few practical tips

For lawyer-influencers, visible disclaimers are essential. They can be in the video itself as well as, but not solely, in the text beneath it. These disclaimers must clarify to viewers that any videos and comment interactions are not intended to create a lawyer-client relationship, that none of the content amounts to legal advice and that viewers should seek legal advice directly from a lawyer. They must disclose if any subject matter is outside their expertise to avoid falling foul of consumer protection laws. It is also advisable to warn viewers that the law might have changed since making the video or commentary.

Firms need to have a clear and consistently enforced policy when it comes to their staff engaging in influencing online. This should include policies about whether or when staff are allowed to engage in this activity during or outside work hours; what the policy is regarding influencing in another field (for example, beauty, cars or gaming); and whether or when influencing might become incompatible with working at the law firm (for example, when it represents direct competition to them, poses risks to ethical and legal obligations or gives rise to commercial conflicts) versus when lawfluencing is ok and even welcome (for example, when quality of work and productivity are not impacted and billable targets are met, increased visibility for the firm or improved wellbeing and loyalty).

For the professional bodies, some writers in the field have concluded that the workings of the tech platforms (their ‘monetisation triggers’) are always going to be more powerful over the conduct of influencers than any regulation. These writers were discussing content creators generally, and not licensed professionals with certain obligations and disciplinary oversight. We have found evidence of professionals flouting or ignoring their professional obligations which is illustrated and cited in our longer paper. However, probably the more common scenario is: the lawyer who is aware of their duties and who, for instance, provides disclaimers and warnings around their activities, although often a little brief (for example, ‘not your lawyer’). Either way, the number of lawfluencers is increasing and professional bodies will need to advise on and regulate this new activity without discouraging it.



Dr Justine Rogers is an Associate Professor and Tony Song is a Research Fellow at UNSW Law & Justice