The Ten Commandments of Drafting a Social Networking Policy

The National Law Review’s featured Guest Bloggers this week are from Steptoe & Johnson PLLC. Vanessa L. Goddard provides some concrete do’s and don’ts for drafting a company Social Media policy.  Read on:

You’ve probably heard this “fact”: if Facebook was a country, it would be the fourth largest country in the world! Web 2.0 has infiltrated every aspect of our lives, including the workplace. As a result, most lawsuits in which employers become mired are fraught with electronic data issues. To guard against a wide range of legal claims, as well as reap the benefits of a global marketplace, many employers are instituting social networking policies. But, as with any policy, a social networking policy must be carefully drafted to meet your business needs. With that, I introduce to you the 10 Commandments of drafting a social networking policy:

NUMBER ONE: Thou shalt NOT use a sample policy pulled willy-nilly from the Internet.

While your search results will pull up dozens of fine looking policies, you won’t know who wrote them, the legal jurisdiction from which they hale, or the business interests the policy seeks to promote. Many times, a bad policy is worse than no policy at all.

NUMBER TWO: Thou SHALT work in harmony to craft a policy appropriate for your business.

If you decide that a social networking policy is appropriate for your business (and it may not be), the combined cooperation of your IT department, human resources, legal, and company decision-makers is necessary to formulate an effective policy.

NUMBER THREE: Thou SHALT know the risks and guard against them.

Employee use of social networking media can have wide-ranging legal ramifications for employers. Possible claims include: harassment, discrimination, defamation, invasion of privacy, and a variety of statutory violations.

NUMBER FOUR: Thou SHALT proclaim that the eye of the employer sees all.

Notify employees that they have no expectation of privacy in their use of company technology, that their activities should be work related only, and that their communications may be accessed at any time.

NUMBER FIVE: Thou shalt NOT take the name of the employer in vain.

The policy should require disclaimers be used indicating that the opinions stated therein are those of the employee and not the employer.

NUMBER SIX: Thou SHALT respect thy co-workers, customers, competitors, and employer.

Require employees to act respectfully in their social networking/blogging activities. Provide guidance on what is and what is not appropriate behavior.

NUMBER SEVEN: Thou shalt NOT steal or do other really bad things with your employer’s computer.

The policy should prohibit disclosure of confidential information, the use of legally-protected/copyrighted information, and the dissemination of personal information of co-workers.

NUMBER EIGHT: Thou SHALT know the consequences of thy actions.

Inform your employees that their social networking activities on the job are subject to all company policies and explain the consequences of violating your social networking policy.

NUMBER NINE: Thou SHALT spread the word throughout the masses.

Distribute the policy. Have your employees sign off on their receipt and understanding of the policy. Provide training on the policy.

NUMBER TEN: Thou shalt NOT commit random acts of destruction.

You MUST ensure that your litigation hold policy incorporates procedures and methodologies to capture and preserve social networking data in the event of litigation.

© 2010 Steptoe & Johnson PLLC All Rights Reserved

About the Author:

Vanessa Goddard’s primary focus is in the area of labor and employment law. She has been involved in representing clients in various employment cases, including sexual harassment, deliberate intent, age, race, and disability discrimination, wrongful discharge, and various other employment-related torts. She is admitted to various state and federal courts as well as the Third Circuit Court of Appeals and Fourth Circuit Court of Appeals.  304-598-8158 /www.steptoe-johnson.com

Twitter Do’s & Twitter Don’ts

As included in the Business of Law Section of the National Law Review Tom Ciesielka of TC Public Relations provides some solid Do’s & Don’ts for Twitter:  

With millions of unique visitors each month, Twitter is still at the top of the social media game. Some people still use Twitter to catalog boring details of the day. However, savvy and smart users realize Twitter’s usefulness as a concise way of marketing and reaching out to consumers and media.  Read the following do’s & don’ts to continue being one of the savvy and smart users.

  • Do make quality friends. Capturing an audience on Twitter is important, but don’t start following 857 people in one day. Start with a few friends, some movers and shakers of your industry, some legal reporters—listen to their tweets, and offer relevant replies. Then continue to follow a few new people week by week. Don’t just follow to follow, but actually think about why you want to connect with a certain person – think “strategic following.” Then contribute meaningful posts each day that others might find interesting as a way to build your own following.
  • Do protect your reputation. Twitter can be used to solidify your brand image, and it is an indispensable medium when crisis hits. Maintaining a Twitter account can help your firm when a damaging story hits cyberspace because a response on Twitter is often the fastest way to acknowledge the problem or issue. Failing to address any breaking news that involves your company makes you look at best, incompetent and at worst, guilty. Confidentiality laws may render tweeting a bad idea, but you should always pay attention to what’s happening and be prepared to do damage control when necessary.
  • Do be efficient. Building relationships on Twitter can facilitate communication about your legal specialties and expertise. However, using Twitter effectively and appropriately can be a time-consuming job, so try and implement applications that will help you be more efficient like TwitterFeed, TweetDeck and ÜberTwitter. It is also more efficient to partake in niche topic conversations about your practice areas instead of tweeting about the world of law in general. Specificity trumps generality.
  • Don’t be boring or narcissistic. Stick to tweeting about pertinent topics and find ways to express your personality through the links you post, rather than tweeting about how many briefs you’ve written that day or what color tie you’re wearing. Share links to legal headlines or comment on stories related to your expertise. Participate in discussion, reply to other users’ tweets, re-tweet their tweets—Twitter is not a one-person game, so don’t try to be the center of the universe.
  • Don’t turn off your censor. In cyberspace, a record of your most inappropriate tweet will live on in infamy long after you’ve cooled down. Never forget that what you say on Twitter can come back to haunt you, so rude or tasteless comments can come back to haunt you. Play it cool and don’t tweet anything you wouldn’t say in public; after all, Twitter is incredibly public.

Copyright © 2010 TC Public Relations

This posting is republished with permission from the Chicago Lawyer Magazine Blog “Around the Watercooler” located at:  http://h20cooler.wordpress.com/2010/

About the Author:

Tom Ciesielka, President of TC Public Relations, has worked in public relations, marketing and business development for more than 25 years and has enjoyed working with clients ranging from law firms to distinguished authors to national and local companies. He feels privileged to have established trusting working relationships with these clients and values every opportunity he gets to help businesses grow.  He is also a former board member of the Legal Marketing Association in Chicago and has spoken at Chicago Bar Associations CLE programs.  312-422-1333 / www.tcpr.net

National Law Review's Student Legal Writing Contest – October is Health Care Month!

Alert the Media!  The National Law Review is offering law students the opportunity to publish their work in the months of October & November. No entry fee is required.

  • Entries will be judged and the top two articles chosen will be featured in the NLR monthly magazine prominently displayed on the NLR home page. Up to 5 runner-up entries will also be posted in the NLR searchable database each month.
  • Each winning article will be displayed accompanied by the student’s photo, biography, contact information, law school logo, and any copyright disclosure.
  • All winning articles will remain in the NLR database for two years (subject to earlier removal upon request of the law school).
  • For more details go to NLR Writing Competition.

Why Students Should Submit Articles

  • Students have the opportunity to publicly display their legal knowledge and skills.
  • The student’s photo, biography, and contact information will be posted with each article, allowing for professional recognition and exposure.
  • Winning articles are published alongside those written by respected attorneys from Am Law 200 and other prominent firms as well as from other respected professional associations.
  • Now more than ever, business development skills are expected from law firm associates earlier in their careers. NLR wants to give law students valuable experience generating consumer-friendly legal content of the sort which is included for publication in law firm client newsletters,law firm blogs, bar association journals and trade association publications.
  • Student postings will remain in the NLR online database for up to two years, easily accessed by potential employers.
  • For an example of  a contest winning student written article from Northwestern University, please click here.

The Submission Deadline for October is Monday September 27th!

Navigating the Internal Revenue Service’s Industry Issue Focus Program: Ten Guidelines for Taxpayers

This week’s  National Law Review featured blogger is Matthew D. Lerner of   Steptoe & Johnson LLP providing some very detailed tips on what to expect and how to handle an IRS audit if your business is the subject of the Industry Issue Focus Program:  

Background

In March 2007, the Large and Mid-Size Business Division (“LMSB”) of the Internal Revenue Service (“IRS”) implemented new procedures for the “Industry Issue Focus Program” (the “Program”).  LMSB has since begun reorganizing into the Large Business and International Division (“LB&I”), and the IRS now also refers to the Industry Issue Focus Program as “Issue Tiering,” but the principles underlying the Program remain the same.  The Issue Tiering approach is a very significant change in the IRS’s approach to recurring issues and can present unique audit challenges, particularly for taxpayers who are unfamiliar with the Program’s procedures.  Nonetheless, it also presents opportunities for taxpayers that use the information available under the Program to position themselves better for audit.

The Program is the latest effort to consolidate the IRS approach to certain common issues presented by multiple taxpayers.   Such issues are now considered with an unprecedented level of coordination across taxpayers and industries.  Taxpayers and their advisors have frequently expressed the concern that the Program causes inflexibility and results in an inappropriate one-size-fits-all approach to issues that fails to consider distinguishing facts.  It removes discretion from the line agents who work with individual taxpayers as well.  The IRS has stated its goals for the Program are: (i) consistency in resolution across industry lines; (ii) improved currency; (iii) increased coverage of non-compliant taxpayers by maximizing limited resources; and (iv) greater oversight on and accountability for important issues.  As recently as June of this year, LMSB area counsel Nancy Vozar Knapp attempted to reassure taxpayers by stating that the Program was under review and will “evolve with the times.”[1]

This article explains some basic facts about the Program and offers a list of guidelines for taxpayers facing audit issues that have been designated for participation in the Program.  Understanding the rationales and goals of the Program and how the Program actually works is key to handling a case involving an issue that has been designated as a “tiered issue.” Although the Program presents challenges, its procedures also provide opportunities to understand the IRS’s approach to an issue in advance in order to develop your strategy and defense.

The basic concept of the Program is that the IRS identifies compliance issues and then prioritizes those issues based on their prevalence and level of compliance risk.  This prioritization is implemented by designating issues using a series of “tiers.”   Issues that have been so designated are generally referred to as “tiered issues.”

Tier I issues are identified by the IRS as issues of high strategic importance that have a significant impact on one or more industries.  There are two categories of issues within Tier I:  (i) compliance issues and (ii) shelter issues.  According to the IRS, Tier I identification does not necessarily mean a transaction or issue is “bad,” but rather indicates that the transaction or issue presents considerations that are of high importance.  Unfortunately, anecdotal evidence suggests that agents in the field do associate a negative, “shelter-like” connotation with any Tier I issue.  Tier II issues are identified by the IRS as issues where there is potentially high non-compliance and/or a significant compliance risk.  Tier III issues are generally industry-related and designated because of their prevalence, not necessarily because of their importance or risk level.

Issues are classified by the Industry Directors.  Potential Tier I or Tier II issues are presented to a group called the Compliance Strategy Council for approval.  If approved, an issue is assigned to the primary affected industry executive or another issue executive to develop a compliance strategy.  Once an issue has been fully developed and a resolution strategy prepared, it will move from “active” status in its tier to a “monitoring” status in the same tier.  The IRS does not typically “demote” issues from higher-priority to lower-priority tiers.  According to the IRS, an issue is considered eligible for “monitoring” status when the Issue Management Team (“IMT”) responsible for the issue has: (i) identified the universe of returns that are likely to contain the issue; (ii) provided the necessary direction to the Field; (iii) issued appropriate procedural guidance and legal position; (iv) developed a resolution strategy; and (v) determined that there is no need to continue the heightened level of oversight.

If you have an issue that is designated as a tiered issue, that issue will likely be more difficult to resolve, given the IRS’s coordinated approach.  You will face a very strong, pre-conceived notion on the part of the IRS as to how the issue should come out.  However, following a few guidelines can give you the best chance to use the Program to your advantage and achieve the best possible resolution under the circumstances.

Guidelines for Handling a Tiered Issue Under the Program

1.  Be Proactive Before and During Your Audit.

You need to know whether you may have a tiered issue before your audit.  Accordingly, it is important to research the different issues that have been designated as tiered issues and have a general understanding of the types of issues the IRS considers for the Program.

For most tiered issues, the IRS has published guidelines, which include an analysis of the issue and the pertinent facts, directions to agents on how to develop the issue, and Model Information Document Requests (“IDRs”).  If an issue has been designated, you must use this guidance to your advantage.  These published materials tell you what the IRS will ask to see and what facts it views as problematic.  Try to structure your transactions not to share those difficult facts.  Be sure you develop and maintain the specific types of information that you know the agent will demand.  Where the materials describe the scope of the issue, use that information to position your transaction outside of the definition or to make sure your transaction is as strongly defensible as possible.

You also need to understand the facts in IRS guidance and work proactively to distinguish your facts from those described in the guidance even before the inevitable audit commences and as you present those facts to the examination agent.  Being prepared to address the issues that you know will be raised will put you in the best position possible.  Recognize that your response to IDRs may be critical in defining the direction the examiners take.  Proceed cautiously during the initial stages of an audit and be careful not to let an agent mistakenly label an issue or transaction as tiered because it has some similarity to a tiered issue.

2. Develop a Good Relationship with the Agent.

An agent’s general impressions of a taxpayer may influence his or her interpretation of transactions.   This is purely common sense.  Where you develop a relationship of mutual respect and work to keep the audit current, the agent will more readily accept your representations and consider your arguments.  If the agent perceives you as unduly hostile or obstructionist, he will be more skeptical of your representations and less receptive to your arguments.

As it relates to tiered issues, if you take steps to cooperate with the agent by providing information as requested and generally make efforts to keep the audit moving, the agent may be more willing to consider your arguments that a transaction falls outside of the tiered issues, or at least go to bat for you in presenting his or her report to the IRS issue specialist or issue owner executive.  The tone the agent takes may have a significant impact on the issue specialist or issue owner’s involvement with the issue.  Do not wait until the last second to provide information or to establish a working relationship with the agent—establish a good relationship from the beginning so you can work to “manage” the examination as much as possible.  The agent is the gatekeeper, and it is better he trusts you.  Understand that a good relationship will not cause an agent not to do his job, but it can help your arguments against an issue’s being a tiered issue gain a foothold.

3.  Distinguish Your Facts.

One of the most critical tasks in handling a tiered issue is to distinguish your facts from those described in negative IRS guidance and from those of other taxpayers. You should take steps to be prepared early in your audit to present your specific facts to the examining agent and highlight the differences.  Sometimes this may be difficult if the guidance is vague and the facts described are generic.  However, the more specific facts that you can develop with respect to your own case, the better chance you will have to identify distinctions and convince the IRS your case is different.  Doing so is the best opportunity to avoid having your transaction mistakenly labeled as a tiered issue.  Once that label is assigned, it will be much more difficult to resolve the issue on audit.

4.  Don’t Rely Too Heavily on Arguing the Law With the Examining Agent.

There is a tendency among practitioners to believe that they can fashion a compelling legal argument that will change the IRS’s mind.  However, the IRS has very bright, capable tax specialists who analyze these issues extensively, and believe they have fully considered all sides, so the chances of getting them to change their view of the law are remote.  The IRS legal position on an issue that has been designated as a tiered issue is developed with consideration by multiple parties.  Any one person responsible for handling your issue will not have authority to reverse or modify that position himself or herself.  In almost all cases, the examining agent will understand that the Service’s issue experts have fully vetted the law, and will take a very pro-IRS view of the law.  Thus, neither agents nor the IMTs will be particularly receptive to your view of legal arguments that others at the IRS have considered as a group.  Unless you have an argument that you feel confident that the IRS has never considered, you are better off focusing on ways to distinguish your facts.

5.  Understand How the IRS Approaches Your Issue.

As noted above, if you have an issue that has been designated, read the guidance published by the IRS on that issue.  IRS guidance may include directives, settlement guidelines, audit guidelines, notices, rulings, coordinated issue papers, regulations, and other published materials.  This not only helps you in planning and implementing transactions, but also aids during the audit.  Compare your facts to those described in the guidance and answer the following questions:  Do your facts appear to be better or worse than the facts in the guidance?  How has the IRS approached this issue in this past?  What is the IRS record on this issue with respect to other taxpayers?  The answers to these questions will influence your strategy in pursuing a resolution to the issue.

6.  Understand the IRS’s General Litigation Strategy on Tiered Issues.

Anecdotal evidence has generally led practitioners to believe that the IRS’s strategy with respect to tiered issues is to identify the cases with the worst facts for the taxpayer and get those cases into court.  The IRS is therefore likely to try to delay or settle cases with better facts early on in an issue’s development so it can develop law favorable to the IRS by trying cases with facts unfavorable to the taxpayer.  Understanding this dynamic, you should work to position your case as a case that the IRS does not want to try in court and would rather settle.  Pushing your case forward quickly when it is strong may force the IRS’s hand, so that your case does not become the test case for an issue.  If your case has good facts, allowing it to languish is a mistake.  That means that you need to double your efforts to stick to deadlines and provide quick responses to all reasonable IDRs on all issues under examination so as not to provide the tools of delay.  It may even mean not agreeing to statute extensions that will keep your case from court.  In the most extreme cases, you may have to pay the tax, and file a refund claim, to move your case more quickly if being the test case for an issue is your chosen route.

7.  Consider How Your Case Fits in With the IRS General Litigation Strategy.

You should learn as much as you can about the cases on the IRS docket with respect to your issue.   Is the IRS litigating these cases?  What are the facts in these cases?  What are the strengths and weaknesses of the cases that are further along in the IRS administrative process or in the courts than yours?  Identifying the range of cases that exist and where your case falls in the spectrum between the most-IRS favorable and the most-taxpayer favorable cases can help you select the best strategy.  Do not fall into the common trap of convincing yourself your case is the best, without developing more information.

8.  Coordinate With Other Taxpayers With Similar Issues.

If possible, make an effort to identify other taxpayers with similar issues and learn their facts.  Learn how the IRS is approaching your issue with other taxpayers.  You may be able to exchange information with other taxpayers and work collectively to accelerate the strongest taxpayer’s case and delay the weaker ones.  If the issue is new and the IRS is still formulating its approach, getting cases with favorable facts to the forefront may influence the pattern IDRs issued by the IRS, alter the IRS’s legal position, and present the IRS with reasons to give examining agents more flexibility to settle cases.

For example, if you believe that you have a strong case and your issue has not been tested in the courts, put pressure on the audit team to move quickly to make your case one of the first.  As noted above, if you can convince the IRS that you have strong facts, there is a good chance the IRS will not want your case to be the test case and therefore will be more willing to engage in meaningful settlement discussions.

9.  Consider Elevating the Case.

If you are having difficulty resolving your case administratively, consider elevating the case within the IRS to get a new, more senior person involved.  The IRS has said that its goal is to resolve cases at the lowest possible level.  Thus, a lower level person at the IRS may be reluctant to seek guidance from more senior personnel unless you push for that.  Under the normal IRS Rules of Engagement, the seniority progresses as follows: (i) Team manager; (ii) Territory manager; and (iii) Director of Field Operations.  The Director of Field Operations has a direct line of communication with the “issue owner executive” responsible for the IRS’s coordinated approach to the issue.  The issue owner executive is usually not involved in specific cases, but at least one IRS official has said informally that a taxpayer may want to contact the issue owner executive if he/she has tried to elevate the case under normal channels without success.  Sometimes, only a high level official will have the authority or experience necessary to make the decision that a set of facts that looks like a tiered issue is not one.

10.  Understand Settlement Procedures.

There are special procedures that apply to the settlement of tiered issues.  Make sure that you understand these procedures before you start negotiations towards a resolution.  The exam team must present any proposed settlements of tiered, listed issues (i.e., Tier I shelter issues) to the Technical Advisor, Issue Specialist, and/or Counsel before going forward with any resolution other than full concession by the taxpayer unless there are settlement guidelines.  Otherwise, whether the proposed settlement of a tiered, non-listed issue needs to be presented to the Issue Management Team may depend on the following circumstances:  (i) issue “maturity” (i.e., how well-developed the IRS position is, whether other cases have been settled, etc.); (ii)  whether Counsel has provided published guidance; (iii) whether the issue has been designated for litigation; and (iv) whether the issue is being considered for litigation in a different case.

Note that the settlement of other, non-tiered issues you may have during your audit may also be more difficult when you also have a tiered issue.  The presence of the tiered issue may cause your examining agent or appeals officer to view such issue as already decided in favor of the IRS.  Thus, you as the taxpayer may lose the opportunity to trade a concession on that issue for the IRS’s concession on another issue.  While no one likes to think of an audit as a “horse trading” exercise, as a practical matter an audit is a series of negotiations that involves “gives” and “takes” by both taxpayers and the IRS.

Note that the special Fast Track settlement procedures may be available to resolve tiered issues.  Under Fast Track, the parties agree to seek a resolution within 120 days.  This accelerated time frame may conserve taxpayer resources and allow a case to be resolved before other unfavorable cases either cause the IRS to impose inflexible settlement guidelines or result in unfavorable court decisions.  Moreover, it may also help convince the IRS team that you do not have a tiered issue if a more independent third party thinks the distinctions you are making are legitimate.

The taxpayer, exam team, IMT coordinator, and Fast Track coordinator all must agree to use Fast Track.  It is better to get support from the exam team first because the exam team manager can contact the other constituencies and be helpful in obtaining the necessary approvals.  If Fast Track appears to be an attractive option, be prepared to address the views and concerns of all constituencies.  For example, IRS Appeals may look for settlements that can be used in other cases.  Remember that Fast Track is a mediation process, so the taxpayer should be prepared to compromise.  Do not use Fast Track and expect to receive a full, or near-full concession from the IRS parties involved.

Conclusion

The Industry Issue Focus Program presents unique challenges because the IRS may be more inflexible as a result of the coordinated approach to issues established through the Program.  However, taxpayers that are proactive and aware of these challenges can still achieve favorable resolutions.


[1] LMSB Tiered Issues Program Under Review, IRS Official Says, Simon Brown, Tax Notes Today, 2010 TNT 108-9, June 7, 2010.

© 2010 STEPTOE & JOHNSON LLP, ALL RIGHTS RESERVED

About the Author:

Matthew D. Lerner is a partner in the Washington-based law firm of Steptoe & Johnson LLP, where he is a member of the Litigation and Business Solutions Departments. He represents both corporations and high net worth individuals involved in tax controversies, from pre-audit advice about transaction documentation, file organization and privilege protection, to representation during IRS audits and appeals, through litigation in the Federal Courts. His experience is broad and includes cases involving repair and rehabilitation expenses, asset classification for depreciation purposes, losses from trading in securities and derivatives, corporate restructuring, domestic production activities, international intercorporate transactions, foreign tax credits, tax accounting method questions, and valuation issues. Matt also advises clients facing legal and public relations crises, coordinating responses to congressional inquiries, criminal investigations, civil litigation, public relations scrutiny, and agency review.

Matt received his J.D. from Harvard Law School, magna cum laude, and was editor of Harvard Law Review. He received his A.B. from Amherst College, Phi Beta Kappa. 202-429-8024 /  www.Steptoe.com

Social Media Policy Drafting: What are the Ethical Risks & Pitfalls?

The National Law Review’s featured Business of Law Guest  Blogger Meredith L. Williams of Baker Donelson Bearman Caldwell & Berkowitz, PC outlines some very real concerns for lawyers and law firms related to social media and state bar assocation guidelines.  Ms. Williams also offers some very concrete Do’s and Don’t on how to address these concerns.  Read on….

Today, social media encompasses a broad sweep of online activity, all of which is trackable and traceable.  These networks include not only the blogs you write and those to which you comment, but also social networks.  Each day brings new online tools and new advances introduce new opportunities to build your virtual footprint.

As a law firm, social media can help drive business initiatives and support professional development efforts. In basic business terms social media can be considered the least expensive form of large scale advertising. However, social media is not exclusively used for business by law firm employees.  When it comes to expressing opinions about anything having to do with the law, firm employees are in a position that requires limitations and have certain limitations. Statements in public forums may inadvertently create an attorney-client relationship, and they may also violate the rules prohibiting law firm advertising.  The wrong communication can be construed as exposing firm or client secrets; invasion of privacy and defamation; trademark violations; and may even lead to wrongful termination claims. Therefore, a law firm must attempt to provide reasonable guidelines for online behavior by members of the firm.

The following are five (5) ethical areas that all law firms should address when drafting internal social media policies. These can also be utilized by law departments when dealing with lawyer and non-lawyer employees.  All of these rules are simply an extension of model rules of professional conduct & state rules of ethics.  The over arching principles should remain the same as new social media sites and technologies emerge.

Advertising (Model Rule of Professional Conduct 7.2)

Marketing and advertising are key functions for any business survival. However, lawyers, especially in law firms, are held to a higher standard when advertising through electronic means. Model Rule of Professional Conduct 7.2[1] states a lawyer or law firm may advertise through written, recorded or electronic means.  This includes all social media sites.

  Quick Reference
  Do

  • Have any personal or professional social media site as desired.
  • Use appropriate disclaimers as needed.

Do NOT

  • Use the organization’s name or email address on a personal site unless using the appropriate disclaimers.
  • Use the organization’s assets to update personal sites.
   

Example: A law firm creates a site on Facebook, MySpace, LinkedIn, Twitter, etc. using the firm name.  Is this advertising?

Example: An employee of a law firm uses the firm name or firm email address on their personal Facebook site.  Is this advertising? 

State ethics boards consider the true crux of the advertising issue to be not who creates the site or the intent of the site but rather whether or not the site can be considered to be used for professional use.  If being used for professional use, social media presence and communication can be considered to fall within the advertising rules. 

Below are a few guidelines to include in firm policies to teach your employees (lawyers and non-lawyers) how not to create a professional site unless intended.

  • Employees should not associate the firm name or firm email address with the site unless it is intended for professional use.  This includes stating they are an employee of the law firm. 
  • Do not use firm assets to update personal sites.  This includes any law firm owned laptop or computer, I-Phone or blackberry, firm IP address and email address.  Using the firm email address implies the employee is acting on the firm’s behalf. 
  • Create an advertising disclaimer to help employees specifically state their use is personal or professional. 

This subject is difficult to approach with employees. Many will argue it is the same as verbally telling someone they work at a specific law firm. However, state boards have compared the online activity to a law firm website vs. verbal communication.  The best approach is helping employees understand how not to blur the lines of professional/ personal sites for their own protection.  As an employer, you want employees to continue using social media sites to broaden and help promote the firm brand.  However, you only want them to do it in the most ethical way.

Attorney-Client Relationship (Model Rule of Professional Conduct 1 Series)

The attorney-client relationship is one of the oldest legal ethical standards.  It creates a certain set of duties the lawyer owes the client. The model rules of professional conduct set forth a series of guidelines that help regulate the creation and existence of this important relationship. In the electronic world, especially when utilizing social media, the important issue is whether any electronic communication creates an attorney-client relationship inadvertently. 

  Quick Reference
  Do

  • Post non-legal comments, blogs, etc. on any personal or professional site.
  • Use appropriate disclaimers as needed.

Do NOT

  • Post legal advice.
  • “Friend” anyone on a professional site unless previously corresponded or known.
  • “Friend” a Judge on a professional site.
   

Example: A lawyer of firm ABC is blogging on a social media site regarding new tax laws. A non-client comments to the blog inquiring about his specific tax situation. The lawyer in turn comments again discussing how the new tax laws apply to the non-client. Has an attorney-client relationship been created?

Law firms presently use disclaimers for emails and firm websites to verify no implied relationship is created.  But how do we instruct employees to this standard when social media sites are interactive by nature? Below are a few key policy guidelines to help employees navigate this difficult area.

  • Employees should never post legal advice.  This does not mean employees cannot comment or post to social media sites. It only relates to publishing or posting that could be construed as legal advice or opinion.  If the subject matter is related to a legal or ethical situation, attorneys and staff may only discuss the legal standards but not apply those standards to any particular fact situation. 
  • Firms should provide a disclaimer for employees to utilize when posting or commenting on professional social networking sites. 
  • When using social networks with firm e-mail and professional identification, employees should not “friend” anyone they do not know and/or with whom they have not previously corresponded. 
  • Some states have even gone so far as to also state that lawyers and judges cannot be “friends” on any professional social media sites. State ethics rules should be consulted prior to drafting any policy.

Client Confidentiality (Model Rule of Professional Conduct 1.6)

Client confidentiality and business privacy are two of the largest concerns of employers when dealing with social media communication. Generally, a lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent.  In addition, privacy of the organization, the business processes, the firm brand and the IP of the firm are key for business continuity.

  Quick Reference
  Do

  • Discuss job generically
  • Avoid uncontrolled forums.
  • Be respectful of other’s and the company’s privacy.
  • Get approval when responding to negative requests.

Do NOT

  • Discuss job specifics.
  • Use the client’s name.
  • Disclose specifics related to the business.
  • Disclose confidential information.
  • Upload law firm contacts onto a social media site.

 

   

Example: A lawyer begins discussing a case he is handling on his personal Facebook blog.  Although not referencing the client name, details of the case are discussed. Has the client confidentiality been broken?

Example: A law firm employee tweets about a firm staff meeting discussing salary and new hires.  Has the privacy of business been destroyed?

Law firms must address confidentiality and privacy standards in social media policies.  In addition, consequences for breaking these standards should also be detailed. Below are a few policy considerations to navigate this area. 

  • Employees should never use a client’s name unless written permission has been received.
  • Employees should never disclose confidential or private business information.  Sharing this type of information, even unintentionally, can result in legal action against the employee, the firm, and/or the client.
  • Outside the workplace, rights to privacy and free speech protect online activity conducted on personal social networks used with personal email addresses.  However, what is published on personal online sites should never be attributed to the firm and should not appear to be endorsed by or originated from the firm.
  • Employees should avoid forums where there is little control over what is known to be confidential information.  In the world of social networking, there is often a breach of confidentiality when someone emails an attorney or posts a comment congratulating him/her on representation of a specific client or on a specific case. 
  • Respect the privacy of other employees and of the opinions of others.  Before sharing a comment, post, picture, or video about a client or other employee through any type of social media or network, his/her consent is not only a courtesy, it is a requirement. 
  • Get Marketing/ PR departments involved when responding to certain inaccurate, accusatory or negative comments about the firm or any firm clients.

Expertise (Model Rule of Professional Conduct 7.4)

  Quick Reference
  Do

  • Allow recommendations.
  • Review and monitor all recommendations carefully.
  • Edit or hide recommendations as needed to remove any verbiage that states you are “better”, “the best”, “expert”, “specialized” or “certified”.

Do NOT

  • Be false or misleading in online credentials.
  • Use the words “better” or “the best” in credentials or when recommending others.
  • Use the verbiage “expert”, “specialist” or “certified” to describe experience unless certified by an organization that is accredited by the ABA or the state bar. 
   

Many lawyers are considered experts or specialists by their peers in select areas of law.  However, using the expert designation can only be done with appropriate approval. Model Rule of Professional Conduct 7.4 generally states that a lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law.  In addition, a lawyer may promote the engagement in specific areas of practice.  However, a lawyer shall NOT state or imply that a lawyer is an expert or a certified specialist unless the lawyer has been certified by an organization that is accredited by the ABA or the state bar. 

This model rule affects the use of credentials and recommendations on social media sites.  What are the key areas to include in law firm policies?

  • Employees should never be false and misleading in online credentials.  All employees should maintain complete accuracy in all online bios and ensure no embellishment. 
  • Recommendations should be used carefully. Employees should review all recommendations created for them for any embellishment (i.e. use of the words better or best) expertise, certification or specialization listing.   Edit or hide recommendations as needed.
  • Employees should not include the words “expert”, “certified”, or “specialized” in their credentials unless authorized to do so.

Expertise and specialization is heavily regulated at the state level.  Some states have gone further in their restricted verbiage. State rules of ethics should be reviewed prior to any policy drafting.

General Communications (Model Rule of Professional Conduct 7 Series)

The final social media ethics concern revolves around general law firm and lawyer communication. In personal and especially professional communication, all communications must be truthful and accurate. 

  Quick Reference
  Do

  • Credit appropriately
  • Fact check
  • Spell & grammar check
  • Correct errors promptly
  • Be transparent
  • Follow firm policies
  • Obey the law

Do NOT

  • Personally attack, become involved in an online fights or hostile communication.
  • Solicit or use commercial speech.  The content must be informative only. Nothing should propose a commercial transaction
   

Law firms and law departments should consider the following general policy guidelines when drafting social media policies. 

  • Identify all copyrighted or borrowed material with citations and links.  When publishing any material online that includes another’s direct or paraphrased quotes, thoughts, ideas, photos, or videos, always give credit to the original material or author, where applicable. 
  • Ensure material is accurate, truthful, and without factual error prior to posting. 
  • Spell and grammar check everything.
  • Correct any mistakes promptly.
  • When participating social media sites in a professional manner, disclose identity and any firm affiliation.  Never use a false name, alias, or be anonymous.  Many courts have looked poorly on law firms and lawyers using alias names while on social media sites.
  • Follow all firm policies and procedures regarding online communications.  Be respectful and do not make statements that are defamatory; racially, sexually, or otherwise insensitive or offensive; or otherwise improper or likely to conflict with the interests of the firm, its employees, clients, affiliates and others, including competitors. 
  • Follow the site’s terms and conditions of use.
  • Do not post any information or conduct any online activity that may violate applicable local, state or federal laws or regulations.
  • Avoid personal attacks, online fights, and hostile communications. 
  • Employees should never solicit or use commercial speech.  Employees should not use a site as a way to directly solicit business for the firm.  While a blog itself is not subject to the limitation on commercial speech, the content of a blog can be.  The content must be informative only, and nothing in the content should propose a commercial transaction or be for the purpose of directly gaining a commercial transaction.

Conclusion

As discussed in this article, there are many ethical considerations when law firms and their employees decided to use social media sites.  Similar to email emerging as the main form of business communication ten (10) years ago, social media is now the communication wave of the future. This new format is how the next generation of leaders presently lives and communicates day to day.  The legal community must embrace the new technology and the opportunity to educate employees.


[1] Model Rules of Professional Conduct are professional standards that serve as models of the regulatory law governing the legal profession.  However, each state board of professional responsibility has additional or supplemental states rules of ethics. State rules should be considered prior to policy drafting.

©2010 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC. All Rights Reserved.

About the Author:

Meredith L. Williams is Baker Donelson’s Director of Knowledge Management.  Although trained as a lawyer, she is not actively engaged in the practice of law.  Instead, she oversees BakerNet, the Firm’s industry-leading intranet, and coordinates strategic growth on behalf of the Firm in knowledge management, competitive intelligence and technology.  Ms. Williams is widely recognized as a leading authority in knowledge management issues for the legal field, and is a frequent presenter and author on knowledge management and competitive intelligence. 

Ms. Williams is a member of the Association of Women Attorneys and the American, Tennessee and Memphis Bar Associations. In addition, Ms. Williams is Conference Vice President for the International Legal Technology Association 2010-2011. She is a recipient of the Dean’s Distinguished Service Award from the University Of Memphis Cecil C. Humphreys School Of Law for her volunteer work.   901-577-2353 / www.BakerDonelson.com

Practice Descriptions and SEO: Distinguish Your Firm from the Competition

Originally posted on the National Law Review and in the LMA Virginia newsletter and contributed by Lauren Hum of Hunton & Williams LLP – some quick tips for SEOing practice descriptions on law firm’s websites: 

Differentiating your firm’s legal services from those of another firm is one of the basic tenants of legal marketing. Many firms offer the same general legal practices that directly compete with other firms for the top spots in legal rankings and search engine results. Fortunately, search engines are predictable creatures that use objective measurements to determine in what order websites are ranked. Below are a few suggestions on how to craft the most effective practice description in order to maximize search engine visibility.

Long-tail Keywords. Each practice has key phrases, usually names of specific laws or regulations, that are unique to that particular practice. It is important to identify these industry-specific keywords and include them in an appropriate place within the practice description. Using long-tailed keywords, such as “EU data protection directive,” will have the added benefit of generating traffic from visitors who have in-depth knowledge about the specific industry as opposed to more generic keywords, such as “climate change,” that will cast a wide and rather ambiguous net.

Keyword Variation. Some practices, like international arbitration, have standardized names that are used universally by almost all firms who offer that practice area. Other practices have different names that describe the same general practice area. For example, a practice may be called “Business Restructuring & Reorganization” at one firm and “Bankruptcy, Restructuring & Creditors’ Rights” at another. Even if there might be slight distinctions in their niche expertise, they are generally targeting the same sector of the legal community. Although the name of the practice should remain consistent throughout the description, not including other commonly searched alternative forms of the practice within the text will limit your reach.

Inbound Links. One of most powerful ways to raise a practice area’s search engine rank is to increase the number of inbound links to the practice description. The more links that lead to your content, the more weight search engines will give to the ranking, and the more traffic will be directed to your practice area description. There are many opportunities to place a link to a practice description on your current material, including blogs, client alerts, and other related practices.

Intelligent Design. Search engines use header, sub header, bullet, and boldface tags to determine the content of a webpage. Using these elements to structure practice area descriptions will not only make your content more comprehensible to search engines, but also present your information more effectively to website visitors.

Consider the Medium. Practice descriptions used for the website should not be the same length as practice descriptions used in proposals and other print materials. By using a practice area description that spans several pages, you are inadvertently sabotaging its chances of appearing in search results. Search engines use complex algorithms that calculate the frequency of keywords divided by the overall length of the content and thus long practice descriptions will dilute the keywords you use to categorize your law practice.

While incorporating any one of these elements into your practice’s website description will be beneficial, it is critical to keep in mind that effective SEO is dependent upon multiple components that work in unison to produce the desired effect. Furthermore, many of these recommendations can be extrapolated to attorney biographies, as they are another opportunity to distinguish your firm from the competition.

DISCLAIMER. The views expressed in this article are those of the author and do not necessarily reflect the views of Hunton & Williams LLP.

Originally published in the Summer 2010 issue of LMA Practice Marketing Newsletter Copyright 2010 Legal Marketing Association –The Virginias Chapter.

Authored By Lauren Hum:

Lauren Hum is a Marketing Technology Specialist at Hunton & Williams LLP and lives in Richmond, Virginia. Ms. Hum is a Communications & Technology committee member for the Legal Marketing Association’s Virginia Chapter and a board member for the William & Mary Richmond Alumni Chapter.

BP Mismanages a Coffee Spill and the Best of @BPGlobalPR

Not surprisingly, the whole world pretty much hates BP now. And more and more people are lashing out against the oil conglomerate with attacks. Some are vicious advocacy campaigns that include pocket-hurting measures like boycotts. Others are vicious satirical jabs at a company whose reputation is being destroyed, piece by piece, day by day.

Here is the funniest attack I’ve seen. From the Upright Citizens Brigade, it’s a spoof of how BP would try to handle a boardroom coffee spill. (There is one instance of NSFW language at the end.)

Good stuff.

And coming in at a close second is the fake BP public relations Twitter feed. If you’re not familiar, many companies use the social media site Twitter to inform the public of their latest news and offerings. And someone has created a satirical @BPGlobalPR account that sends out frequent humorous updates laced with acerbic cynicism for how BP is handling this mess. Often accompanied by the sarcastic “#bpcares” disclaimer, the account advocates charity causes such as offering ”free bpcares” t-shirts that you can purchase for $25. (You can read more about @BPGlobalPR here and here.)

Here are the cleverest updates from the account so far:

SPOILER ALERT: The leak stops eventually, everyone forgets about it and we all buy another vacation home. #cantwait

Found driftwood that looks like Jesus crying oil. Not sure what it means but we’re charging 20 bucks to see it. #bpcares

If we’re being accused of being criminals, we want to be tried by a jury of our peers — wealthy execs who don’t give a damn. #fairisfair

I’ve gotta say, at night the gulf really doesn’t look that bad. #bpcares

OMG This isss ridciulsus. playing a drinking gamee where we drink a shot everytme we seeee an oily birdddd!!! LOL! so wasted!!11 #pbcares

What a gorgeous day! The ocean is filled with the most beautiful rainbows! #yourewelcome #bpcares

They want to fine us $4,300 for every barrel of oil spilled? Umm, we’re not spilling barrels, the oil is going directly into the gulf. DUH

A bird just stole my sandwich! You deserve everything you get, nature!!! #bpcares

If Top Kill doesn’t work, we’re just gonna toss a giant “Get Well Soon” card into the gulf and hope for the best. #bpcares

Just wrapped up a meeting with the EPA. Terry kept farting out loud at all the right moments. Not sure how he does it, but it’s SO FUNNY!

Funny, no one has thanked us for seasons 3-15 of Treme yet. #bpcares

The good news: Mermaids are real. The bad news: They are now extinct. #bpcares

Catastrophe is a strong word, let’s all agree to call it a whoopsie daisy.

Beverly Hillbillies marathon on TBS – now THESE guys knew what to do with an oil leak!

Not only are we dropping a top hat on the oil spill, we’re going to throw in a cane and monocle as well. Keeping it classy.

Authored by: Jared Wade

The above article is reprinted from the Risk Management Monitor – the official blog of Risk Management magazine.

Reprinted with permission from the Risk Management Monitor. Copyright 2010 Risk and Insurance Management Society, Inc. All rights reserved.