Lawyers on social media delight, inform, raise ethics questions about attorney-client relationships

An attorney panel earlier this month shared the joys and hazards of lawyers addressing the general public through social media.

A hat tip to Mississippi attorney Kye C. Handy, Balch & Bingham, for introducing me to California attorney and influencer Reb Masel on TikTok, the J.D. genius behind Reading Iconic Court Transcripts and other legal commentary.

@rebmasel i dedicate this one to Kohl’s cash #transcripts ♬ original sound - reb for the rebrand

Reb Masel's Rebuttal
(Spotify, Apple, YouTube)

Reb Masel hosts the Rebuttal podcast at Spotify, Apple, and YouTube. Read more about her at Tubefilter, where she said in fall 2023 that she practices in defense-side civil litigation "for now." If you must know more about Pepperdine Law alumna Reb Masel in the muggle world, the Daily Mail wrote about her in 2022.

Handy served on an ethics panel at the Next Generation and the Future of Business Litigation program of the Tort Trial & Insurance Practice Section (TIPS) of the American Bar Association (ABA) at the 2024 ABA Midyear meeting in Louisville, Ky., earlier this month.

A key takeaway of the panel for attorneys: be careful you don't create an attorney-client relationship through social media posts. If giving legal advice, disclaim, disclaim, disclaim.

Florida attorney Richard Rivera said that ethical obligations may arise merely from a viewer's subjective belief that an attorney-client relationship exists. I presume there is a reasonableness check on that, but the objective measure would be lay perception, not the knowledge and experience of the attorney. Thus, a social media post can trigger an attorney's duties of confidentiality and timely response to questions.

Accordingly, Washington attorney Matthew Albrecht warned attorneys to keep up with their inboxes in all media. If a viewer or listener reaches out through a web form, social media direct messaging, etc., asking a question in response to a post, failure to respond promptly can be an ethics violation.

Moreover, an attorney must be wary of questioners who overshare, Albrecht said. They might post comments on a public website that compromise their cases, and the attorney may be obliged to delete the comments to protect the prospective client. A questioner also might provide information that puts the attorney in conflict with prior or existing clients. So an attorney with any online presence should have and adhere to a careful policy for receiving and processing incoming communications.

I wish I could count on a response from a doctor's office when I ask a question. Clearly, the bar for attorneys is higher.

Probably needless to say, some attorneys give advice in mass media that might be accurate in context and not run afoul of ethics rules, but might at the same time invite trouble in problematic misunderstanding. For example, many online videos present Texas lawyers schooling viewers on the use of force in defense of property under the state's generous castle laws. Handy shared one video by a lawyer who described a property owner vs. trespasser confrontation in which the property owner might lawfully "beat her ass."

To inform professionalism, Handy recommended to law students and new lawyers the podcast Young Lawyer Rising from the Legal Talk Network, an ABA partner.

The ABA TIPS panel comprised Albrecht, Handy, Rivera, and D.C. attorney Josephine M. Bahn.

Gladstone, Doctorow game out tech reg quagmire

Cory Doctorow
Houari B. via Flickr CC BY-NC-SA 2.0

On the Media's Brooke Gladstone talked to Cory Doctorow, author, internet activist, etc., on September 1 about, well, everything, and it's a breathtaking hour of must-listen radio.

The conversation wrapped up every issue I care about in technology and society today into a neat and intelligible bundle of the utter mess that it is: intellectual property, antitrust, privacy and data protection, politics and corruption, and the corporatocracy that's incinerating democracy. Doctorow is more optimistic than I that human civilization can yet be saved, so the program is not even a downer in the end.

I feel like I'm someone who knows a fair bit about this stuff, so I was humbled by how much I learned. I want to spill it all here, but I ought not be a spoiler. I'll share just a tidbit.

You know that thing when videos go viral and some average joe or jane inspires another generation of youth to plot a career as a social media sensation?

Yeah, not a thing.  At least not always an organic thing. Companies such as TikTok "twiddle" or "heat up"—terms of art—selected content to make it "viral," even while users think that they collectively are driving virality by demand.

Why? It's a "giant teddy bear" strategy, Doctorow explained. The carney at the fair lets an early player on one of those unwinnable-by-design games "win" the giant teddy bear, knowing that that customer will carry it around all night, inadvertently advertising the game to everyone else. The viral video maker thinks that a million people just loved that nutty dance and doesn't even realize that she or he is a tool, carrying the giant teddy bear around.

How do the companies get away with telling us one thing and doing something else? Because they change the rules whenever they like, Doctorow said. There are no rules about how they can change the rules.

Huzaifa abedeen via Wikimedia Commons CC BY-SA 4.0

And don't even get me started on the plethora of legal mechanisms that protect this monstrous Big Tech monopolization. Dare to start asking questions, and you'll find yourself on the business end of demand letters citing the DMCA, the Computer Fraud and Abuse Act, and patent and trademark law, just to get the ball rolling.

Yes, I realize that I am writing on a Google platform right now. What's a writer to do? I confess, I made a conscious decision at one point simply to surrender to Google. I have a Nest doorbell, a Pixel phone, and a Google Drive. But, you see, this is what Doctorow is talking about. It's next to impossible to get along in the virtual world today without surrendering.  Try buying diapers from Diapers.com instead of Amazon.

Doctorow is a big fan of Lina Khan and the example she's setting with the Federal Trade Commission's sudden scrutiny of the tech sector. Unfortunately, Doctorow said, it's easier to stop monopoly from happening than to dismantle it after it's taken hold. If you're my age, you'll remember how long AT&T reigned supreme before the feds came a-knockin'. Better late than never. I'll be interested to see if Khan-ology persists, or corporate power in Washington is now too big to break.

The podcast is How Big Tech Went to Sh*t, from WNYC's On the Media (Sept. 1, 2023).

Glued hair precipitates lawsuit talk, problem of liability exposure when products are misused

Trevor Noah and Dulcé Sloan had some fun on The Daily Show this week with TikToker Tessica Brown, who is considering suit against Gorilla Glue after using it on her hair sent her to the hospital.

I have some Gorilla Glue right on my desk.  I love the stuff, except how it hardens in the bottle before I can use it all, an apparently intractable malady of super glues.  I got out my reading glasses, and the tiny print on mine says:

WARNING: BONDS SKIN INSTANTLY.  EYE AND SKIN IRRITANT.  MAY PRODUCE ALLERGIC REACTION BY SKIN CONTACT.  Do not swallow.  Do not get in eyes.  Do not get on skin or clothing.  Do not breathe in fumes.  KEEP OUT OF REACH OF CHILDREN.  Wear safety glasses and chemical resistant gloves.  Contains ethyl cyanoacrylate.  FIRST AID TREATMENT: If swallowed, call a Poison Control Center or doctor immediately.  Eyelid bonding: see a doctor.  Skin binding: soak skin in water and call a Poison Control Center.  Do not force apart. For medical emergencies only, call 800-....

 Image by RJ Peltz-Steele CC BY-SA 4.0
with no claim to underlying content

No mention of hair, so I guess the warning label will have to be longer now.  The hair incident prompted a Twitter response from Gorilla Glue, lamenting the misuse and wishing Brown well.

Whether and when to acknowledge an unapproved use of a product always has been an intriguing problem in the practice of product liability defense.  Foreseeability is a key part of the product liability test in many states, so a maker with actual knowledge of an off-label use is sometimes wrangled into having to warn against the absurd.  That leads to some funny results, as evidenced by the label collection that my friend Prof. Andrew McClurg has maintained since before the internet was a thing, now a feature on his legal humor website.

In the analog days, a sharply worded letter might have been an adequate response to the customer who wrote in with helpful intention to suggest how effective oven cleaner might be for mole removal.  Woe be to the product maker whose goods turned up in a book such as Uncommon Uses for Common Household Products, which taught people how to MacGyver products to exceed their design intentions.  (And there's a small but fascinating sub-genre of publisher-defense cases at the intersection of product liability and First Amendment law.)  At that point, it was time to update the warning label, if not issue an affirmative press release, because it would no longer be plausible to argue lack of foreseeability to a jury.  The anticipatory defense would have to shift focus to other theories, such as unavoidable dangerousness and consumer responsibility.

The democratization of mass communication through the internet and social media has accelerated the timeline.  So now we see quick responses to individual incidents, such as Gorilla Glue's on Twitter.

The instant case is not firmly in the genre of unintended uses, because Brown intended at least to use the glue for its adhesive property.  Still, I'll go out on a reasonably secure limb and say that any lawsuit arising from the instant incident, at least upon the facts as reported so far, would be frivolous.  More likely, the TikToker in question has accomplished her mission by being the talk of the electronic town.

UPDATE, Feb. 13, 2021: Princess Weekes at The Mary Sue cautions us not to be manipulated by defense tort reformers into too readily siding against Brown, like in the Hot Coffee case.  I don't think I've been so co-opted, but such an admonition is always well advised.