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Lawyers on YouTube: What Constitutes Advertising?

The New York State Bar Association's Committee on Attorney Advertising, Solicitation, and Professional Notices has recently issued an opinion on whether revenue-producing YouTube videos made by legal practitioners constitute advertising even if the videos carry educational value. The opinion provides guidance for lawyers to prevent disciplinary actions by the state bar, including but not limited to, suspension or revocation of the lawyer's license to practice law.

While legal professionals are allowed to advertise, the New York Rules of Professional Conduct requires them to comply with the New York Rules of Professional Conduct. Namely, their videos should not: mislead the public, contain false or unsubstantiated claims and be overly promotional. Lawyers shall also include a disclaimer in their videos indicating that they are advertising materials and that the results obtained in the video are not necessarily indicative of the results that will be achieved in a particular lawsuit. Further, according to the opinion, lawyers shall also be mindful of their ethical obligations when creating videos, including their duty of confidentiality to clients and their duty to avoid conflicts of interest. 

However, if the video is purely educational and does not contain any promotional content - then it is equated with writing articles or giving lectures and is not subjected to advertising disclaimer. “Topical newsletters, client alerts, or blogs intended to educate recipients about new developments in the law are generally not considered advertising,” stated the Committee. However, if “YouTube videos include information about the lawyer and their law practice for the primary purpose of obtaining new clients, then such videos would constitute advertising.”

This opinion is particularly relevant for lawyers in New York who are considering using YouTube as a marketing tool. It provides helpful guidance on how to comply with the advertising rules and ethical obligations when creating content. However, it also raises questions about the scope of the rules and the extent to which they apply to YouTube. As more lawyers turn to online platforms to promote their services, it will be interesting to see how state bar associations and regulatory bodies adapt their rules and guidelines to keep up with these changes.