Social Media Policies: Your Firm Needs One

Not If, But When

Even if your law firm hasn't codified the way employees are engaging online, even if your firm doesn't have an official blog, Facebook page or LinkedIn group, even if you're at a firm that blocks access to social networks entirely (and we urge you to reconsider that policy quickly), your employees are already there.

Being engaged in social networks has enormous value for your firm. Through them, you can establish thought leadership, find new recruits, provide a more efficient way for potential clients to find you online, and participate in and monitor discussions about the issues that impact your clients and your firm.

Achieving those benefits, however, requires participation by members of your firm. This group extends beyond your marketing and public relations representatives or a single spokesperson for your firm, all of whom are already well versed in the strategic and prudent disclosure of information. Best practices can be applied firm-wide that help achieve your business goals and protect the firm. For starters, that means understanding both the legal ramifications of online engagement and the fuzzier, but no less important, implications of the use of the virtual microphone or TV station to enhance your firm's reputation.

The first thing you must do is create a social media policy ' or modify an existing policy that is free and available for you to borrow.

How to Build a Social Media Policy

At Jaffe, a public relations agency serving only the legal community, we implemented our social media policy over a year ago when we realized that, as communicators, our employees were engaging in online conversations every day. We were conversing with bloggers to promote our clients, and many of us were joining and participating in virtual professional networks, such as Legal OnRamp and LinkedIn. It made sense to us to map out some guidelines for our team.

Last fall, we made our policy available for free downloading through our Web site, www.jaffeassociates.com. You can adapt it as your own or, if you want, comb through the numerous examples of such policies written by organizations such as Sun Microsystems ' where thousands of employees have their own blogs ' the U.S. Navy or Harvard Law School (see, http://twitpwr.com/2Ff/).

Based on our experience at Jaffe, we understood that any company's social media policy should reflect the culture of the firm. For example, Microsoft's social media policy is simply “Be Smart.” And, while that may work well for Microsoft, law firms, as you well know, must adhere to different standards.

As well-known legal blogger Kevin O'Keefe recently said in reference to creating a social media policy for a firm's blog: “Apply your existing law firm standards and protocol on confidentiality, PR, marketing, and communication. Who better to know how blogs fit into your culture and the safeguards needed for firm comfort than the firm's own professionals?”

Furthermore, when developing your policy, it's important to be familiar with the ethics rules of the states in which you operate.

What Constitutes Work-Related Activity Online?

This is a trick question, and a tricky one, given the reality that personal and business worlds are dynamic and constantly bumping into one another, as mentioned above. The answer is that social media policy should apply to work-related online activity; however, what constitutes work-related activity is not black and white.

Take the (completely fictional) example of Leslie Kay, an associate at a firm specializing in bankruptcy law. Leslie is a great lawyer and a rock-climbing enthusiast. For “professional purposes,” Leslie has a LinkedIn profile, where she has posted her work experience and titles of books she's reading for work. She even shares information on LinkedIn groups on bankruptcy legal news.

Leslie the rock climber also has a Facebook page where she keeps up with her friends from every stage in her life, including her lawyer and law school friends, and plans outings with a rock-climbing group that communicates through the Web site. Leslie's Facebook profile includes her work information. Leslie also has a blog about rock climbing, and she Twitters when she climbs. Sometimes, Leslie compares her climbs to challenges she faces at work. Leslie's Twitter stream is set to post automatically to her Facebook profile. So while Leslie is using her blog, Twitter and Facebook to pursue her social life, anyone who wants to can find out where she works and then find Leslie on LinkedIn.

If an employee mentions on a personal social network profile that she works for your firm, then the social media policy can apply to her activity in social networks.

The Common Sense Clause

Here's how we handled this dilemma in the Jaffe Associates social media policy:

You are responsible for what you post. You are personally responsible for any of your online activity conducted with a firm e-mail address, and/or which can be traced back to the firm's domain, and/or which uses firm assets. The (FIRM DOMAIN).com address attached to your name implies that you are acting on the firm's behalf. When using a firm e-mail address or firm assets to engage in any social media or professional social networking activity (for example LinkedIn and Legal OnRamp), all actions are public, and attorneys (and staff) will be held fully responsible for any and all said activities.

The Less than Obvious Clause

Outside the workplace, your rights to privacy and free speech protect online activity conducted on your personal social networks with your personal e-mail address. However, what you publish on such personal online sites should never be attributed to the firm and should not appear to be endorsed by or originated from the firm. If you choose to list your work affiliation on a social network, then you should regard all communication on that network as you would in a professional network. Online lives are ultimately linked, whether or not you choose to mention the firm in your personal online networking activity.

Some companies solve the problem by asking their employees who blog to name their employer on the blog, whether the blog relates to business or not. Other companies ask that employees post a disclaimer that indicates that the views on the site are not necessarily those of the company. Social media guru and uber-blogger Robert Scoble, who blogs on Scobelizer.com, has just such a clause on his blog.

So What Can Employees Post?

At their core, social media policies are there to encourage, rather than discourage, activity on social networks. Social networks are meant to be conversations, and that's a very good thing. It shows the human face of your firm.

In general, posting policies should follow common sense:

• Don't post anything that's confidential;
• Avoid the appearance of establishing a client-attorney relationship;
• Don't get into an argument with anyone; and
• Be polite and avoid sensitive subjects.

But the truth is, younger employees have been online for years, sharing everything they can think of (and things you may not have) and aren't used to putting on the brakes, even when it comes to engaging in conversations online on behalf of work.

One intriguing policy is Sun Microsystems', which starts by assuming that its employees will use common sense, but also offers some suggestions on how to dive in.

The lessons garnered from Sun are: Be respectful, never identify anyone in a photo or quote someone unless he or she has given you express permission to do so and be transparent. Lay claim to your posts and comments. (See, www.sun.com/communities/guidelines.jsp.)

Creating a fake identity or posting anonymously can have serious consequences. Whole Foods suffered when its president, John Mackey, used a fake identity to post questions on Yahoo! As reported in the August 2007 issue of Internet Law & Strategy: “So goes the strange tale of John Mackey, the chief executive officer of Whole Foods Market, who used a pseudonymous identity on the Yahoo! message boards for nearly eight years to lambaste competition and promote his supermarket chain's stock, according to documents released by the Federal Trade Commission (FTC). ' Many of the messages he sent as 'Rahodeb' were critical of Wild Oats Markets, Inc., which Whole Foods is trying to acquire. The postings came to light in documents filed by Whole Foods with the FTC, which is seeking to block the Wild Oats acquisition. ' The [Securities and Exchange Commission] will decide whether to proceed with a formal investigation delving into Mackey's 'sock-puppeting' shenanigans as 'Rahodeb,' which, in retrospect, may prove to have been a costly hobby that derailed a profitable acquisition for Whole Foods, and caused an embittered man to sue his Wild Oats.” (See, www.ljnonline.com/issues/ljn_internetlaw/5_8/news/149056-1.html.)

Maintaining Client Confidentiality

It almost goes without saying that a breach of confidentiality would have a serious impact on your firm. This needs to be clearly spelled out in any social media policy, because such breaches may be unintentional. Once something is out there on the Web, it can be spread ' and repurposed ' anywhere.

Here's how we provide guidance in the Jaffe Associates' social media policy:

Avoid forums where there is little control over what you know to be confidential information. In the world of social networking, there is often a breach of confidentiality when someone e-mails an attorney or posts a comment congratulating him/her on representation of a specific client or on a specific case. Often these things are being discussed in the social network circles ' it's how attorneys are establishing credibility ' so be very selective and thoughtful about where you post and how you reply (or not).

Should Approval Be Required
Before Employees Post?

Generally, if a social media policy is in place and the firm's staff is trained in how to engage online, the vast majority of posts should not require approval by anyone else in the firm. In fact, employees who are already using social networks may balk at this oversight and significantly scale back their participation online. The purpose of a social media policy should not be to squash online engagement.

There will be times, however, when such approvals are necessary. These include occasions when employees wish to respond to a negative or inaccurate post about your firm or a client, post recommendations for colleagues (which can be perceived as testimonials) or respond directly to journalists regarding issues of concern for the firm. All of these instances can have unintended legal repercussions.

Why You May Want to
Have a Disclaimer

For lawyers, it's important to be very clear about what is ' and isn't ' offered on social networks. The vast majority of social media experts in the legal field advise that firms use disclaimers on their blogs, especially when communicating about fees, awards, recent cases or case outcomes, or when offering information. That's because attorney-client relationships may be created online; this often occurs in social media whether you want it to or not. To protect your firm, disclaimers may be prudent. As we note in Jaffe Associates' social media policy:

Some firms are building in pop-up boxes that stop people from e-mailing an attorney and require them to accept the terms of a disclaimer before e-mailing information that could constitute an attorney-client relationship.

Social media policies can help protect the firm's reputation. But having such a policy and implementing it properly requires careful attention to the nuances of the rapidly changing online world. When everyone is encouraged to dive in and converse, when it's so easy to demonstrate expertise and to share, it's easy to go over the line and, for example, answer a legal question on a social network such as Facebook or LinkedIn. More important than any social media policy, then, is training staff on best practices in social media, asking for their participation and keeping up with the changes in the technology and new media so that you can help the firm stay apace and reputable.

To say that social networking is counterintuitive to the practice of law is an understatement. And to say that a social networking policy will be the panacea that will solve all issues that arise in this brave new world is na've. A social networking policy obviously is a great starting point, but only if you understand that all of the rules may change by the time you read this article.

Today, our work and personal lives are in a permanent state of collision, and nowhere is that more evident than online in social networks. Chances are, the younger members of your firm grew up managing their personal relationships through MySpace and Facebook ' and still do. Now it looks as if the rest of your attorneys and employees are, or will be in the near future, following suit.

In the past few months, Facebook has aged up. According to statistics released by the Web site, the number of Americans over 35, 45 and 55 on Facebook is exploding. In late March, Facebook reported that in the 60 prior days, the number of people on the site over the age of 35 had nearly doubled. In total, about 200 million people are registered users of Facebook.

Social networks in general are experiencing galloping growth. As of February, LinkedIn had more than 35 million registered users. Twitter now has about 10 million users. All are places where people ' including your staff ' are congregating to share news, insight, maybe a good joke and, if they're not cautious, information that may be damaging to your client relationships or your firm.

Not If, But When

Even if your law firm hasn't codified the way employees are engaging online, even if your firm doesn't have an official blog, Facebook page or LinkedIn group, even if you're at a firm that blocks access to social networks entirely (and we urge you to reconsider that policy quickly), your employees are already there.

Being engaged in social networks has enormous value for your firm. Through them, you can establish thought leadership, find new recruits, provide a more efficient way for potential clients to find you online, and participate in and monitor discussions about the issues that impact your clients and your firm.

Achieving those benefits, however, requires participation by members of your firm. This group extends beyond your marketing and public relations representatives or a single spokesperson for your firm, all of whom are already well versed in the strategic and prudent disclosure of information. Best practices can be applied firm-wide that help achieve your business goals and protect the firm. For starters, that means understanding both the legal ramifications of online engagement and the fuzzier, but no less important, implications of the use of the virtual microphone or TV station to enhance your firm's reputation.

The first thing you must do is create a social media policy ' or modify an existing policy that is free and available for you to borrow.

How to Build a Social Media Policy

At Jaffe, a public relations agency serving only the legal community, we implemented our social media policy over a year ago when we realized that, as communicators, our employees were engaging in online conversations every day. We were conversing with bloggers to promote our clients, and many of us were joining and participating in virtual professional networks, such as Legal OnRamp and LinkedIn. It made sense to us to map out some guidelines for our team.

Last fall, we made our policy available for free downloading through our Web site, www.jaffeassociates.com. You can adapt it as your own or, if you want, comb through the numerous examples of such policies written by organizations such as Sun Microsystems ' where thousands of employees have their own blogs ' the U.S. Navy or Harvard Law School (see, http://twitpwr.com/2Ff/).

Based on our experience at Jaffe, we understood that any company's social media policy should reflect the culture of the firm. For example, Microsoft's social media policy is simply “Be Smart.” And, while that may work well for Microsoft, law firms, as you well know, must adhere to different standards.

As well-known legal blogger Kevin O'Keefe recently said in reference to creating a social media policy for a firm's blog: “Apply your existing law firm standards and protocol on confidentiality, PR, marketing, and communication. Who better to know how blogs fit into your culture and the safeguards needed for firm comfort than the firm's own professionals?”

Furthermore, when developing your policy, it's important to be familiar with the ethics rules of the states in which you operate.

What Constitutes Work-Related Activity Online?

This is a trick question, and a tricky one, given the reality that personal and business worlds are dynamic and constantly bumping into one another, as mentioned above. The answer is that social media policy should apply to work-related online activity; however, what constitutes work-related activity is not black and white.

Take the (completely fictional) example of Leslie Kay, an associate at a firm specializing in bankruptcy law. Leslie is a great lawyer and a rock-climbing enthusiast. For “professional purposes,” Leslie has a LinkedIn profile, where she has posted her work experience and titles of books she's reading for work. She even shares information on LinkedIn groups on bankruptcy legal news.

Leslie the rock climber also has a Facebook page where she keeps up with her friends from every stage in her life, including her lawyer and law school friends, and plans outings with a rock-climbing group that communicates through the Web site. Leslie's Facebook profile includes her work information. Leslie also has a blog about rock climbing, and she Twitters when she climbs. Sometimes, Leslie compares her climbs to challenges she faces at work. Leslie's Twitter stream is set to post automatically to her Facebook profile. So while Leslie is using her blog, Twitter and Facebook to pursue her social life, anyone who wants to can find out where she works and then find Leslie on LinkedIn.

If an employee mentions on a personal social network profile that she works for your firm, then the social media policy can apply to her activity in social networks.

The Common Sense Clause

Here's how we handled this dilemma in the Jaffe Associates social media policy:

You are responsible for what you post. You are personally responsible for any of your online activity conducted with a firm e-mail address, and/or which can be traced back to the firm's domain, and/or which uses firm assets. The (FIRM DOMAIN).com address attached to your name implies that you are acting on the firm's behalf. When using a firm e-mail address or firm assets to engage in any social media or professional social networking activity (for example LinkedIn and Legal OnRamp), all actions are public, and attorneys (and staff) will be held fully responsible for any and all said activities.

The Less than Obvious Clause

Outside the workplace, your rights to privacy and free speech protect online activity conducted on your personal social networks with your personal e-mail address. However, what you publish on such personal online sites should never be attributed to the firm and should not appear to be endorsed by or originated from the firm. If you choose to list your work affiliation on a social network, then you should regard all communication on that network as you would in a professional network. Online lives are ultimately linked, whether or not you choose to mention the firm in your personal online networking activity.

Some companies solve the problem by asking their employees who blog to name their employer on the blog, whether the blog relates to business or not. Other companies ask that employees post a disclaimer that indicates that the views on the site are not necessarily those of the company. Social media guru and uber-blogger Robert Scoble, who blogs on Scobelizer.com, has just such a clause on his blog.

So What Can Employees Post?

At their core, social media policies are there to encourage, rather than discourage, activity on social networks. Social networks are meant to be conversations, and that's a very good thing. It shows the human face of your firm.

In general, posting policies should follow common sense:

• Don't post anything that's confidential;
• Avoid the appearance of establishing a client-attorney relationship;
• Don't get into an argument with anyone; and
• Be polite and avoid sensitive subjects.

But the truth is, younger employees have been online for years, sharing everything they can think of (and things you may not have) and aren't used to putting on the brakes, even when it comes to engaging in conversations online on behalf of work.

One intriguing policy is Sun Microsystems', which starts by assuming that its employees will use common sense, but also offers some suggestions on how to dive in.

The lessons garnered from Sun are: Be respectful, never identify anyone in a photo or quote someone unless he or she has given you express permission to do so and be transparent. Lay claim to your posts and comments. (See, www.sun.com/communities/guidelines.jsp.)

Creating a fake identity or posting anonymously can have serious consequences. Whole Foods suffered when its president, John Mackey, used a fake identity to post questions on Yahoo! As reported in the August 2007 issue of Internet Law & Strategy: “So goes the strange tale of John Mackey, the chief executive officer of Whole Foods Market, who used a pseudonymous identity on the Yahoo! message boards for nearly eight years to lambaste competition and promote his supermarket chain's stock, according to documents released by the Federal Trade Commission (FTC). ' Many of the messages he sent as 'Rahodeb' were critical of Wild Oats Markets, Inc., which Whole Foods is trying to acquire. The postings came to light in documents filed by Whole Foods with the FTC, which is seeking to block the Wild Oats acquisition. ' The [Securities and Exchange Commission] will decide whether to proceed with a formal investigation delving into Mackey's 'sock-puppeting' shenanigans as 'Rahodeb,' which, in retrospect, may prove to have been a costly hobby that derailed a profitable acquisition for Whole Foods, and caused an embittered man to sue his Wild Oats.” (See, www.ljnonline.com/issues/ljn_internetlaw/5_8/news/149056-1.html.)

Maintaining Client Confidentiality

It almost goes without saying that a breach of confidentiality would have a serious impact on your firm. This needs to be clearly spelled out in any social media policy, because such breaches may be unintentional. Once something is out there on the Web, it can be spread ' and repurposed ' anywhere.

Here's how we provide guidance in the Jaffe Associates' social media policy:

Avoid forums where there is little control over what you know to be confidential information. In the world of social networking, there is often a breach of confidentiality when someone e-mails an attorney or posts a comment congratulating him/her on representation of a specific client or on a specific case. Often these things are being discussed in the social network circles ' it's how attorneys are establishing credibility ' so be very selective and thoughtful about where you post and how you reply (or not).

Should Approval Be Required
Before Employees Post?

Generally, if a social media policy is in place and the firm's staff is trained in how to engage online, the vast majority of posts should not require approval by anyone else in the firm. In fact, employees who are already using social networks may balk at this oversight and significantly scale back their participation online. The purpose of a social media policy should not be to squash online engagement.

There will be times, however, when such approvals are necessary. These include occasions when employees wish to respond to a negative or inaccurate post about your firm or a client, post recommendations for colleagues (which can be perceived as testimonials) or respond directly to journalists regarding issues of concern for the firm. All of these instances can have unintended legal repercussions.

Why You May Want to
Have a Disclaimer

For lawyers, it's important to be very clear about what is ' and isn't ' offered on social networks. The vast majority of social media experts in the legal field advise that firms use disclaimers on their blogs, especially when communicating about fees, awards, recent cases or case outcomes, or when offering information. That's because attorney-client relationships may be created online; this often occurs in social media whether you want it to or not. To protect your firm, disclaimers may be prudent. As we note in Jaffe Associates' social media policy:

Some firms are building in pop-up boxes that stop people from e-mailing an attorney and require them to accept the terms of a disclaimer before e-mailing information that could constitute an attorney-client relationship.

Social media policies can help protect the firm's reputation. But having such a policy and implementing it properly requires careful attention to the nuances of the rapidly changing online world. When everyone is encouraged to dive in and converse, when it's so easy to demonstrate expertise and to share, it's easy to go over the line and, for example, answer a legal question on a social network such as Facebook or LinkedIn. More important than any social media policy, then, is training staff on best practices in social media, asking for their participation and keeping up with the changes in the technology and new media so that you can help the firm stay apace and reputable.

To say that social networking is counterintuitive to the practice of law is an understatement. And to say that a social networking policy will be the panacea that will solve all issues that arise in this brave new world is na've. A social networking policy obviously is a great starting point, but only if you understand that all of the rules may change by the time you read this article.