You need a game plan before entering the sometimes terrifying world of law firm podcasting. But that’s no reason to stay away. Let’s walk through the big questions about legal ethics and podcasting, and allay some of your fears.
Like the proverbial turd in the proverbial punch bowl, professional ethics for lawyers is always lurking, just out of frame, to ruin the fun. In fact, it’s one reason lawyers are reticent to market their practices, since they’re afraid to say, state, or write the wrong thing and face real ramifications for their professional licensure.
Hosting a podcast is a great way for a lawyer to build reputation and authority, but podcasts may appear to be the scariest medium — I mean, after all, you’re recording live conversations.
Now, if you’re reading this, you’re probably an attorney. And, if you’re an attorney, you’re amazing at spotting potential downsides to every endeavor. Thus, if you’re considering a podcast as a marketing option, you may be stopped in your tracks like one of Dr. Seuss’s Zax by these ethical quandaries, believing that navigating legal ethics and podcasting is simply not worth the squeeze.
So, let’s lay out some of the potential professional ethics issues surrounding podcasts and potentially allay your fear; because it’s OK to pinpoint problems, so long as you’re not engaged in unnecessarily building up mountains from mole hills.
Standard Issue: Basic Legal Marketing Ethics Considerations Applied to Podcasts
The two anchor concerns for legal ethics, as those are applied to legal marketing, respect the inadvertent creation of attorney-client relationships and the related concern of providing legal advice to non-clients. Those rules are broadly applied to law firms, and certainly would apply to lawyers’ actions on a podcast.
Is that a reason not to have a podcast? Not really. I mean, you have a website, right? And, you send emails, do you not? How do you protect yourself in those instances?
That’s right: the handy dandy disclaimer!
The good news is that you can protect yourself from podcasting by using this same strategy.
You can include disclaimers in your podcast feed description, or on any website where you host your show. That’s pretty straightforward, and very similar to what you would do with your law firm website or social media channels. True, there isn’t a 1:1 comparison for audio or video attributes; though, I think we can make it work.
Simply read a disclaimer that indicates listening to or watching the podcast does not create an attorney-client relationship and that the podcast is produced and published for informational or entertainment purposes only and does not represent legal advice. Read and record the disclaimer once, and insert it in the final recording of your podcast. Or, record a new disclaimer version for each episode, and maybe add a humorous spin (e.g., “If you want advice: ask my mother-in-law!”). Add it to the show notes too.
Bonus coverage: Once you’re capturing various formats when you record a show, note that the disclaimer will make it into your show transcript as well.
He Said, She Said: The Guest Conundrum
Of course, most podcasts feature regular guests — and those guests could literally say anything. If some of your guests are active lawyers as well, it makes sense to discuss how they’d like to approach ethics issues before the show starts. For guests who are not practicing lawyers, it makes sense to provide them with some information about your ethical requirements. You don’t want them asking you for your legal advice during the conversation!
Now, the expectation is not that your guests will be reading through your jurisdiction’s ethics rules in advance of a show appearance. Trust me, you’d never have any guests on your show if that were the case. But you could offer some high points as part of your pre-show guidance for guests. This is certainly a broader consideration – but you should send to your guests pre-show guidance about what to expect in general, via email, at a safe remove from the recording date. That’ll cover a whole host of things, but should include some information about lawyer ethics.
Obviously, avoid conversations about active cases or discoverable matters.
Plus, keep in mind that podcasts are generally pre-recorded. So, if one of your guests (or you!) gets a little out of pocket, episodes can be edited (most likely) or re-recorded (less likely) before release. You’re in control (or your producer is)!
Border Patrol: The Multi-Jurisdictional Dilemma
Here’s another brain-twister for you: The internet is everywhere, so if you broadcast a podcast from your office in Chicago, someone in Timbuktu — or, more concerningly, Wisconsin — could be listening. Are you practicing law in a jurisdiction where you aren’t licensed just because they downloaded your episode?
Relax, Chicken Little.
While the ABA Model Rules on multi-jurisdictional practice (specifically Rule 5.5) are always hovering like a raincloud, navigating legal ethics and podcasting across state lines is relatively painless. Again, your disclaimer does the heavy lifting. Simply state where you are licensed to practice law right at the top of the show and in show notes. You don’t need a passport to host a podcast, just a little geographical transparency.
Proper Planning Prevents Poor Performance: Your Script Is Your Friend
That level of control also extends to your personal preparation for the podcast. As just alluded to, professional podcasts are edited and revised before publication, and most podcast hosts build scripts as guideposts for shows, which can be shared with guests. Generally speaking, if you stick to the script, with appropriate ethical guardrails in place, you’ll stay in your lane.
Keeping it tight also means that you should speak only from your experience — bluster does not serve the lawyer or lawyer-podcaster; it’s another way for you to get in trouble, potentially, from an ethics standpoint. Calling yourself the “best” attorney (unprovable) or comparing yourself to another attorney is just inviting an ethics complaint — especially when you’re doing it in a format as public as a podcast.
Lots of referral sources and potential clients are interested in your actual experience and demonstrated domain authority. Not only is it against the lawyers’ ethics canon to say false or misleading things, but it also doesn’t serve a viable marketing purpose.
Podcasting like a pro means preparing for your episodes and ensuring that your guests are aware of your process, as well as your obligations as an attorney.
That may not seem like tons of fun, but even race car drivers wear seatbelts (and diapers).
