The Ethical Dilemma of Viral Advocacy

By Palakshi Sharma '26

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The rise of social media has reshaped every profession, lawyers being no exception. With 75% of law firms using social media, attorneys have turned to various platforms to advertise their services, educate the public, and build their personal brands through humorous and insightful 30-second videos. (1) Although some view this as a resourceful method of client outreach and public education, others raise concerns about the line between accessible legal expertise and unethical legal conduct. The American Bar Association’s Model Rules of Professional Conduct regulate unauthorized activities, client confidentiality, and advertising, but the increasing popularity of short-form videos raises an imperative question: Are traditional legal ethics equipped to regulate social media advocacy? (2) 

While the “lawyer-influencer” phenomenon is relatively new, the ethical obligations of attorneys are rooted in a longstanding code detailed by the American Bar Association’s Model Rules of Professional Conduct. These rules established safeguards for client confidentiality, preserved the integrity of the profession, and ensured competent delivery of legal services. (3) However, as more lawyers use social media platforms to create legal content and draw large audiences, these obligations are being tested in unprecedented ways. 

Rule 1.6 (a) of the Model Rules states “a lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent…” (4) This rule applies broadly, to any information regarding the client, with limited exceptions under subsection (b), like preventing harm, or complying with other laws. (5) None of the exceptions specified includes casual disclosures of information for legal social media content. (6) Additionally, 1.6 (c) obligates lawyers to protect client information from unauthorized or accidental disclosure or access, meaning that even anonymous legal anecdotes can violate ethical boundaries. (7)

Rules 7.1-7.3 address how lawyers advertise and solicit their business. Rule 7.1 bars misleading or false statements about a lawyer’s services, especially with exaggerated or potentially deceptive content on social media. (8) Rule 7.2 permits advertising through any form of media, but lawyers cannot pay anyone for “...recommending the lawyer’s services…” with a few outlined exceptions (e.g., costs of advertising, a referral service/agreement). (9) These limitations obscure advertising and referrals on social media, with little distinction between client praise or endorsement. Additionally, lawyers cannot claim to be experts without official certification, which can be overlooked online. (10) Rule 7.3 bars lawyers from soliciting employment from clients through in-person contact, unless the person has a close relationship with the lawyer, routinely uses legal services, or is another lawyer. (11) While lawyers are permitted to advertise to broad audiences, engagement on social media (such as direct messaging and comments) can raise questions about whether these interactions are unethical, especially when targeted or profit-driven. (12)

Additionally, Rule 3.6 states that a lawyer cannot make public statements that “will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.” (13) This rule can be applied to the context of social media as well, with lawyers discussing cases online. (14) Attorneys risk violating 3.6 as they increasingly continue to use social media, with 81% of attorneys nationwide using social media for “professional purposes.” (15) 

Finally, Rule 1.1 requires lawyers to “provide competent representation,” defined as “the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.” (16) Lawyers who post content, specifically legal advice or drawing from case experiences, have the affirmative duty that their information is updated, true, and not misleading. (17) Additionally, competence in the social media age includes acknowledging the ethical risks of posting content online and ensuring responsible communication with the general audience. Comment 8 specifies a technology competence stipulation, but fails to define “relevant technology” and does not mention social media, leaving attorneys vulnerable to unintentional ethical breaches. (18)

Although ethical standards in the Model Rules are clear in principle, they become challenging to apply in real-world situations involving social media, as seen in the case of Frank Arthur Smith III. 

In 2019, Massachusetts attorney Frank Arthur Smith III was publicly reprimanded for violating Rule 1.6(a) of the Massachusetts Rules of Professional Conduct, which “...forbids a lawyer from revealing ‘confidential information relating to the representation of a client…” (19) Smith posted identifiable, sensitive information about a client’s case on his public Facebook page, including case details, court name, and the involvement of the Massachusetts Department of Children and Families. (20) Family members of the client were able to connect the case to the client, despite Smith not mentioning her by name. (21) By sharing identifiable information of the client without consent, Smith violated the principle of confidentiality explicitly written in Rule 1.6, and the disciplinary board ruled that Smith breached his duties. (22) The family members identifying their relative as Smith’s client shows how social media expands the definition of “identifiable information.” Given Rule 1.6 (c)’s obligation to prevent accidental or unauthorized disclosure, attorneys must approach social media with extreme caution when sharing “anonymous” stories. 

Platforms like TikTok complicate these boundaries further through its short-form algorithm, which may incentivize lawyers to share “anonymous” quick client anecdotes for engagement. Its reach means that unethical content can quickly go viral, intensifying harm to client confidentiality and professional integrity. For example, lawyers often post legal stories and “advice,” but under Rule 1.6, seemingly anonymous details can be considered a violation if someone can identify the client. As a result, violations on these platforms are harder to identify and attribute, and the lack of guidance for what constitutes a breach under Rule 1.6 further complicates the matter. 

Additionally, social media engagement can also violate Rule 7.3, prohibiting solicitation “motivated by pecuniary gain.” (23) Due to the interactive and informal nature of social media through comments, direct messages, etc, any action can “rise to the level of a prohibited solicitation.” (24) According to the Utah State Bar, a violation of 7.3 may happen when an attorney “...manipulates the features of the site to reach targeted populations or contact specific people.” (25) Interactive features of social media can be regarded as solicitation if aimed at people who may need legal services, targeted by “lawyer-influencers.” 

Social media also raises concerns for trial publicity. A recent case out of Georgia illustrates the consequences of unethical social media activity, with an attorney posting videos about “the three lies we actively have to tell the jury” prior to the trial and posting additional videos during it. (26) While the attorney did not reveal identifying information about the case/parties, and “believed that they were zealously advocating for their client,” the judge still found that the videos “had a substantial likelihood of materially prejudicing the outcome of the trial,” violating Rule 3.6. (27) The critical point for this case is the rapid, uncontrolled virality of online content. Even a seemingly harmless or casual post can reach broad audiences, complicating judicial mitigation. This outcome illustrates the current Model Rules, specifically 1.6 and 3.6, failing to outline clear and adequate guidelines on what behaviors qualify as prejudiced statements or client confidentiality infractions. 

The ABA Model Rules remain an integral part of legal practice, establishing principles of confidentiality, competence, and candor. These values are as important in the social media age. Nevertheless, they do not sufficiently address the rapid changes on social media platforms, and as a result, lawyers on social media platforms have little guidance on ethically navigating digital communities. The current rules were simply not designed for casual legal conversations through 30-second viral videos. Many state bar associations, such as Ohio’s state bar, “ merely tell its members to ‘be responsible’ and ‘be upfront’ when using social media and interacting with other professionals,” which does not offer any substantial clarity. (28)

As the Smith and Georgia cases validate, these violations happen in ambiguous situations. Lawyers can unintentionally violate a Model Rule through storytelling or offering advice online and be reprimanded for their violations. State bar associations have issued vague and inconsistent opinions, but the ABA must update the application of the Model Rules to address “influencer-style” advertising, storytelling, and general social media engagement. For example, Comment 8 on Rule 1.1, governing competence, does not mention social media, an omission which “is a vague, overbroad guideline that deprives an ordinary, intelligent person of fair notice of its reach.” (29) Integrating social media use and knowledge, such as in the Philadelphia Bar Association Opinion 2014-5, would help attorneys adhere to the duty of competence by providing further clarity. Specifically, the Phila. Bar. Op. 2014-5 instructs lawyers to understand social network platforms, and encourages capturing social media evidence for client defense. (30) To uphold confidentiality in Rule 1.6, the ABA must amend the rule to explicitly address social media behaviors, similarly to the New York State Bar Association’s (NYBSA) Social Media Ethics Guideline No. 5E, which outlines potential risks with social media and requires attorneys to “make reasonable efforts to prevent the inadvertent or unauthorized disclosure” of sensitive information. (31) Additionally, the NYBSA Guidelines No. 2A and 2C offer a framework that can address concerns with solicitation and advertising in the Model Rules, stressing that lawyers’ social media accounts are subject to attorney rules, and they have a duty to ensure that any third-party does not violate any ethics rule on their social media accounts through endorsements, comments, etc. (32)

Updating the Model Rules is essential for the preservation of the legal profession’s integrity in a continuously evolving digital environment. New, emerging social media platforms will exacerbate the ethical risks of “viral advocacy” if reforms are not implemented soon. By defining specific guidelines for social media conduct, attorneys can actively avoid breaches in their duties of confidentiality, competence, and solicitation. The ABA can ensure consistent enforcement and accountability across all jurisdictions by providing lawyers with precise instructions through a dedicated body for social media platform ethics. The body would issue detailed advisory opinions, respond to inquiries, and develop stronger guidelines to complement the current Model Rules. Only with updated Model Rules, consistent enforcement, and comprehensive reform can attorneys ethically navigate social media to improve their practice, thereby protecting the reputation of the profession and competently serving the people. 

Endnotes

1. CBA Blog View, Cincybar.org (2025), https://www.cincybar.org/About-Us/News/CBA-Blog/CBA-Blog-View/articleid/28323?dnnprintmode=true&mid=29938&SkinSrc=%5BG%5DSkins%2F_default%2FNo%2BSkin&ContainerSrc=%5BG%5DContainers%2F_default%2FNo%2BContainer.. 

2. Model Rules of Professional Conduct, Americanbar.org (2023), https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct.

3. Ibid.

4. American Bar Association, Rule 1.6: Confidentiality of Information, Americanbar.org (2019), https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_6_confidentiality_of_information/.. 

5. Ibid.

6. Ibid.

7. Ibid.

8. American Bar Association, Rule 7.1: Communications Concerning a Lawyer’s Services, Americanbar.org (2025), https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_7_1_communication_concerning_a_lawyer_s_services.

9. American Bar Association, Rule 7.2: Communications Concerning a Lawyer’s Services: Specific Rules, Americanbar.org(2025), https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_7_2_advertising. 

10. Ibid.

11. American Bar Association, Rule 7.3 Solicitation of Clients, www.americanbar.org (2019), https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_7_3_direct_contact_with_prospective_clients/. . 

12. Ibid.

13. American Bar Association, Rule 3.6: Trial Publicity, Americanbar.org (2025), https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_3_6_trial_publicity. 

14. Mary Grace Monzel, Attorney-Tok: An Analysis of Lawyers Advertising on TikTok, University of Cincinnati Law Review Blog (2021), https://uclawreview.org/2021/05/13/attorney-tok-an-analysis-of-lawyers-advertising-on-tiktok/#_ftnref13..

15. Lorena Valle, State Bar of Texas | Articles, Texasbar.com (2024), https://www.texasbar.com/AM/Template.cfm?Section=articles&Template=%2FCM%2FHTMLDisplay.cfm&ContentID=64428 . 

16. American Bar Association, Rule 1.1: Competence, Americanbar.org (2019), https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_1_competence/.. 

17. Ibid.

18. Ibid.

19. Commonwealth of Massachusetts, FRANK ARTHUR SMITH, III Public Reprimand No. 2019-16, Board of Bar Overseers (2019), https://bbopublic.massbbo.org/web/f/pr19-16.pdf..

20. Ibid.

21. Ibid.

22. Ibid.

23. Christina Harvey, Mac Mccoy & Brook Sneath, 10 Tips for Avoiding Ethical Lapses When Using Social Media, https://www.vid.uscourts.gov/sites/vid/files/EthicsTips.pdf.. 

24. Blake Tims, Unguided: Social Media Usage in the Legal Profession and the Need for Practical Guidance, SSRN Electronic Journal (2021), https://www.utahbar.org/wp-content/uploads/2023/03/3.-Tims-Social-Media-in-the-Legal-Profession.pdf . 

25. Ibid.

26. Lorena Valle, State Bar of Texas | Articles, Texasbar.com (2024), https://www.texasbar.com/AM/Template.cfm?Section=articles&Template=%2FCM%2FHTMLDisplay.cfm&ContentID=64428 .

27. Ibid.

28. Blake Tims, Unguided: Social Media Usage in the Legal Profession and the Need for Practical Guidance, SSRN Electronic Journal (2021), https://www.utahbar.org/wp-content/uploads/2023/03/3.-Tims-Social-Media-in-the-Legal-Profession.pdf . 

29. Ibid.

30. New York State Bar Association, SOCIAL MEDIA ETHICS GUIDELINES OF THE COMMERCIAL AND FEDERAL LITIGATION SECTION OF THE NEW YORK STATE BAR ASSOCIATION, (2019), https://nysba.org/wp-content/uploads/2020/02/NYSBA-Social-Media-Ethics-Guidelines-Final-6-20-19.pdf?srsltid=AfmBOoq3W3Cq9A-Scve9kuLsqv2OpgwT4NdcbAzxTG_MUhYRvKDjSGZI. 

31. Ibid.

32. Ibid.