It is no secret that when marketing firms use celebrity endorsements to enhance consumer recognition of a brand, it is also to promote the product to encourage additional sales. Every day, consumers are bombarded with advertisements of well-known and unknown brands. When a celebrity is used as a marketing tool to promote brands or products, that person helps influence a positive brand image and consumer buying intention. However, what happens when a celebrity uses their platform to promote a product or brand but does not think of how it ethically impacts the consumer or even themselves?
Kim Kardashian is no stranger to promoting brands and products. She does so on a plethora of platforms, including social media. At times, it is done without even marketing a specific brand or product but simply by Instagramming a recent purchase or idea of hers. As anyone with an inkling of interest in Kim Kardashian knows, she is working toward receiving her law degree through California’s non-traditional path. She started sharing her journey on her reality television show, “Keeping Up with the Kardashians,”1 and social media platforms.
Recently, Kardashian shared on her Instagram account that after completing California’s baby bar exam, she is now learning civil procedure and showed off her yellow legal pads. To the average lawyer, legal pads are our way of life — it is how we function day to day. But Kim’s legal pads had an additional element to them; printed at the top of each page of her legal pad was the phrase “KIM IS MY LAWYER.” These pads became so popular that the legal website “Above the Law” wrote an article2 about how terrific they were and asked where they could be made. I wonder if potential ethical implications were considered before posting and getting likes?
Before considering potential ethical implications, note that this article does not assess the impact of California’s rules of professional conduct. Rather, it examines the rules that could be enforced if a law student in Michigan posted something similar. To simplify this assessment, let’s pretend Kardashian is a law student in Michigan, and we’ll start where it all begins for law students — character and fitness.
Under the Michigan Constitution, the Michigan Supreme Court has exclusive authority over regulation of lawyers and the practice of law. This authority includes adopting rules for admission to the bar, discipline of members, and authority over the State Bar of Michigan itself. The character and fitness portion evaluates whether an applicant to the bar possesses the moral character needed to practice law based on several factors. New lawyers must pass a character and fitness evaluation, the Multistate Professional Responsibility Exam, and the bar exam before they can practice law. Once admitted, they must adhere to high professional standards.
At this point you’re probably wondering, what does all of this have to do with some legal pads promoted by a reality star? Well, a layperson looking at this Instagram post might think, “Kim must be a lawyer now because she is calling herself a lawyer.” Could this be considered unauthorized practice of law (UPL)3 because she is promoting herself as a lawyer on a public page where prospective clients may see it even though she is not licensed to practice law yet? Better yet, think about it this way: law students in Michigan routinely work as law clerks, legal assistants, etc. and have regular contact with clients. What if Kardashian took out legal pads with the phrase “KIM IS MY LAWYER” on each page in front of a client? Could that be considered UPL because she is calling herself a lawyer in front of a potential or current client?
If the character and fitness evaluation revealed these pads being used by a law student in Michigan, they would likely contact UPL counsel to investigate. Why? Because with this simple phrase on the legal pad, it could be determined that she is holding herself out as a lawyer before being licensed, which is a violation of MRPC 5.5(b)(2), MRPC 7.1(a), and MRPC 8.1(a)(1) and (b)(1).
MRPC 5.5(b)(2) states “[a] lawyer who is not admitted to practice in this jurisdiction shall not...hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction.” Here, Kardashian has posted a photo of a legal pad implying that she is or could be someone’s lawyer to millions of Instagram followers. Identifying oneself as a lawyer implies you have done what the state has required you to do to become licensed and that you are in good standing with the bar. By advertising that she is someone’s lawyer — even if done in a social or playful way — it could be determined that she has held out to the public (who may not be well versed in the requirements for becoming a lawyer) that she is admitted to practice law in that specific jurisdiction.
MRPC 7.1(a) states “[a] communication shall not ... contain a material misrepresentation of fact or law, or omit a fact necessary to make the statement considered as a whole not materially misleading[.]” Again, if Kardashian falsely states that she is a lawyer, it is not a truthful representation of the services she can provide based upon her current status as a law student. The statement “KIM IS MY LAWYER” alone could be interpreted as omitting the facts that she is not licensed to practice law, still a law student, and unable to provide legal advice or representation. A statement that provides the impression that she is currently representing someone would be a violation of MRPC 5.5.
Beyond the potential violation of ethical rules, who else could be held accountable for Kardashian’s conduct? A supervisory lawyer. A lawyer who supervises a law student has a duty to ensure that nonlawyer assistants do not engage in activities that violate the professional obligations of the lawyer. Here, Kardashian is a law student, so she would be considered a nonlawyer assistant. MRPC 5.3 provides that a lawyer is responsible for conduct of nonlawyer assistants that would be a violation of the rules if the lawyer knows the fact of the conduct or is a partner and fails to take steps to avoid or mitigate the conduct. Kardashian may only use these legal pads for her studies, but since she has posted a picture of them on social media to her millions of followers — and future prospective clients — what are the consequences for her supervising lawyer? At the very least, her supervising lawyer and the law firm partners may face questions about this conduct and their supervision.4 Is that really worth some likes on social media?
Further, Ethics Opinion RI-29 opined that “[a] lawyer having knowledge that a law student has engaged in conduct which if done by a lawyer would have violated the Michigan Rules of Professional Conduct, has a duty to report the conduct to bar admissions authorities, unless the relevant information is protected by attorney-client privilege.”
MRPC 8.1 provides the boundaries an applicant for admission to the bar (a law student) must adhere to. Under MRPC 8.1, law students are held to a standard similar to that of lawyers — to not knowingly make false statements of material fact and not engage in the unauthorized practice of law. Law students are required to be truthful when asserting their current status to practice law and should be mindful of their applications under the applicable rules to avoid misrepresentation. No promotion of oneself, brand, or product is worth placing their future license to practice in jeopardy — no matter the number of social media likes.
Kardashian’s Instagram post, however, does include, “And so it begins again #lawschool.” Would this additional information help counter concerns about potential violations of MRPC 5.5(b)(2), MRPC 7.1(a) and MRPC 8.1(a)(1) and (b)(1), at least within the Instagram post? Maybe. But should law students really take the risk simply to promote a brand, a product, or an idea? Would you?