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The New Competition – Emerging Legal Technologies Out of Silicon Valley

In January, the National Law Review had pleasure of attending theAnnual Marketing Partner Forum in beautiful Rancho Palos Altos, California. Programing was provided by the Legal Executives Institute at Thomson Reuters and featured over 15 hours of dynamic workshops. Hundreds of marketing partners, managing partners, in-house counsel and senior-level marketing and business development professionals were in attendance.

The “New Competition” program featured emerging legal technologies within Silicon Valley. Catherine Hammack of Jurispect, Monica Zent of Foxwordy, and Daniel Lewis of Ravel Law each showcased their innovative technologies and shared their thoughts as to where innovation is taking the legal industry in 2015.

“Jurispect will help fundamentally transform how companies operate by providing organizations with a real-time analytical view of both exposure and opportunities to take proactive steps to manage legal and regulatory risk.” – Catherine Hammack

Catherine was present on two momentous occasions in U.S. financial history: as an intern at Arthur Anderson when Enron was indicted, and as a first-day associate at Bingham McCutchen the day Lehman Brothers filed for bankruptcy, and the start of the financial crisis in 2008. Following her time at Bingham as a financial litigator, she transitioned to join Google’s Policy team, where her perspective on legal services dramatically changed.

As Catherine elaborated in a post-conference interview: “There was a huge gap between the way law firms traditionally provide counsel and the way companies need information to make business decisions.” She was surrounded by engineers and data scientists who were analyzing vasts amounts of data with cutting edge technology. Catherine became interested in adapting these technologies for managing risk in the legal and regulatory industries. Inspired by Google’s data-driven decision making policies, she founded Jurispect.

Jurispect is a tool that companies can use to track legal and regulatory changes relevant to their industry, and possibly to identify risks earlier on to help avoid future Enrons and Lehman Brothers. Currently, Jurispect is geared toward companies in the financial services and technology space, and will be expanding into other regulated industries in the very near future. Key decision makers in the corporate legal, compliance and risk departments of companies are benefitting from Jurispect’s actionable intelligence. The user’s experience is customized: Jurispect’s technology adjusts based on user profile settings and company attributes. As the user continues to utilize Jurispect, its algorithms continuously calibrate to improve the relevancy of information presented to each user.

Jurispect’s team of seasoned experts in engineering, data science, product management, marketing, legal and compliance collaborated to develop the latest machine learning and semantic analysis technologies. These technologies are used to aggregate information across regulatory agencies, including sources such as policy statements and enforcement actions. Jurispect also analyzes information in relevant press releases, and coverage by both industry bodies and mainstream news. The most time-saving aspect of Jurispect are the results that coalesce into user-friendly reports to highlight the importance and relevance of the regulatory information to their company. Users can view this intelligence in the form of notifications, trends, and predictive analytics reports. Jurispect makes data analytics work for legal professionals so they spend less time searching, and more time on higher level competencies. As Catherine elaborated, “We believe that analytics are quickly becoming central to any technology solution, and the regulatory space is no exception.”

“Foxwordy is ushering in the era of the social age for lawyers and for the legal industry.” – Monica Zent

Monica is an experienced entrepreneur and had already been running a successful alternative law firm practice when she founded Foxwordy. Foxwordy is a private social network that is exclusively for lawyers. Monica reminded the audience that we are, remarkably, ten years into the social media experience and all attorneys should consider a well rounded social media toolkit that includes Foxwordy, Twitter, and LinkedIn.

However, as Monica elaborated in a post-conference interview, LinkedIn, for example, “falls short of the needs of professionals like lawyers who are in a space that is regulated; where there’s privacy, [and] professional ethics standards.” As an experienced attorney and social seller, Monica understands that lawyers’ needs are different from other professionals that use the more mainstream and very public social networks, which is why she set out to create Foxwordy.

Foxwordy is currently available to licensed attorneys, those who are licensed but not currently practicing but regularly involved in the business of law, certified paralegals, and will eventually open up to law students. Anyone who fits the above criteria can request membership by going to the homepage, and all potential members go through a vetting process to ensure that they are a member of the legal community. At its inception, the Foxwordy team expected to see more millennials and solo practitioners taking advantage of the opportunity to network on Foxwordy. Those populations have joined as expected, but what was surprising is how the product resonated across all demographics, positions and segments of the legal industry. Foxwordy has seen general counsels, in-house counsels, solo practitioners, major law firm partners, law school deans, judges, politicians and more become members.

Foxwordy is currently available to join and will be emerging out of public beta around summertime this year. As Monica said during her presentation “Time is the new currency”, and what the Foxwordy team has found via two clinical trials is that engaging Foxwordy saves lawyers an average of two hours per day. Membership includes all the core social features such as a profile page, connecting with others, the ability to ask questions and engage anonymously, exchange referrals, and exchange other information and resources. Free members experience all the core functions fully and there is a premium membership that is available with enhanced features and unlimited use of Foxwordy. In the closing thoughts of her post-conference interview, Monica shared that “the ability to engage anonymously and discreetly, yet at the same time collaborate with our legal colleagues and engage with them on a social level has been very powerful.”

“There is an amazing opportunity to use data analytics and technology to create a competitive edge for lawyers amidst all of this information…” – Daniel Lewis

Data analytics and technology has been used in many different fields to predict successful results. In his presentation, Daniel pointed out that fields traditionally considered more art than science have benefitted from the use of data analytics to predict accurate results.

Having conducted metrics-based research and advocacy while at the Bipartisan Policy Center, and observing how data-driven decision making was being used in areas like baseball and politics, Daniel was curious why the legal industry had fallen so far behind. Even though the legal field is often considered to be slow moving, there are currently over 11 million opinions in the U.S. judicial system with more than 350,000 new opinions issued per year. There is also a glut of secondary material that has appeared on the scene in the form of legal news sources, white papers, law blogs and more. Inspired by technology’s ability to harness and utilize vast amounts of information, Daniel founded Ravel Law to accommodate the dramatically growing world of legal information.

Ravel Law is optimized for all lawyers across the country. Currently, thousands of associates, partners, and in-house counsel are using Ravel. Ravel has as also begun working with 30 of the top law schools around the country, with thousands of law students learning how to use it right alongside legal research staples such as Westlaw and LexisNexis. Professors and students around the country have also independently discovered Ravel and are using and teaching it. When asked why he works with law schools, Daniel said “We work with schools because students are always the latest generation and have the highest expectations about how technology should work for them.” Students have given the Ravel team excellent feedback and have grown into a loyal user base over the past few years. Once these students graduate, they introduce Ravel to their firms. Ravel’s user base has been growing very quickly and they have only released a small portion of what their technology is ultimately capable of.

Ravel’s team of PhDs and technical advisors from Google, LinkedIn, and Facebook, has coded advanced search algorithms to determine what is relevant, thereby enhancing legal research’s effectiveness and efficiency. Ravel provides insights, rather than simply lists of related materials, by using big data technologies such as machine learning, data visualization, advanced statistics and natural language processing. In a post-conference follow up Daniel elaborates: “Our visualizations then show how the results connect in context, helping people understand the legal landscape very rapidly as well as find needles in the haystack.” Ravel guides users toward analysis of relevant passages in a particular case, without navigating away from the original case or conducting a new search. Daniel and his colleagues will be launching more new features this year and are looking forward to continuing to “transform how attorneys search and understand all legal information.”

The Year in Social Media: Four Big Developments from 2014

As social networking has become entrenched as a tool for doing business and not just a pastime of our social lives, employers, government agencies, and even academia have taken big steps in 2014 to define how social media can and cannot, or should and should not, be used. Below is a summary of some of the big developments in social media in the workplace this year.

The EEOC Turns Its Attention to Social Media

The Equal Employment Opportunity Commission has turned its attention toward social networking, meeting in March to gather information about social media use in the workplace. To no surprise, the EEOC recognized that although using social media sites such as LinkedIn could be a “valuable tool” for identifying employment candidates, relying on personal information found on social networks, such as age, race, gender, or ethnicity, to make employment decisions is prohibited.

More controversially, the EEOC expressed concern that employers’ efforts to access so-called “private” social media communications in the discovery phase of discrimination lawsuits might have a “chilling effect” on employees filing discrimination cases. However, it is unclear how the EEOC might prevent employers from getting this information if it is relevant to a plaintiff’s claims. It remains to be seen what steps the EEOC might take to address this “chilling effect.”

The NLRB Continues to Refine Its Position on Social Media Policies

The National Labor Relations Board has spent the past few years attacking social media policies as overbroad, but perhaps a shift in that policy is at hand. This summer, an NLRB administrative law judge upheld a social media policy that discouraged employees from posting information on social networks about the company or their jobs that might create morale problems. The ALJ held that the policy did not prohibit job-related posts, but merely called on employees to be civil in their social media posts to avoid morale problems. The ALJ’s finding is at odds with recent NLRB decisions, which have gone much further to limit any policies that might affect employees’ rights under the National Labor Relations Act. While it is unclear whether this holding is an outlier or a shift in the NLRB’s approach, it brings with it some hope that the NLRB may be moving toward a more pro-employer stance.

States Continue to Limit Employers’ Access to Employees’ Social Media Accounts

State governments also are getting involved with social media regulation. In April, Wisconsin became the newest state to pass legislation aimed at protecting employees’ social media accounts, passing the Social Media Protection Act. The Act bars employers, schools, and landlords from requiring their employees, students, and tenants to produce their social media passwords. Significantly, the Act does not ban them from viewing social media posts that are publicly accessible.

Wisconsin was not alone in enacting legislation to protect social media passwords this year, as Louisiana, Maine, New Hampshire, Oklahoma, Rhode Island and Tennessee enacted similar laws during 2014 and 12 other states did so in previous years. While not every state has passed such legislation, it is clear that state governments increasingly will not tolerate employers asking employees or applicants for access to their private social networking accounts. Employers should be mindful of their state laws before seeking social media information that might be protected.

Academia is Drawing Its Own Conclusions Regarding Social Media in the Workplace

Federal and state governments are not the only institutions weighing the implications of social media in the workplace. University researchers also are studying employers’ stances on social media – a North Carolina State University study concluded that applicants tend to have a lower opinion of employers that looked at their social media profiles before making a hiring decision, and a Carnegie Mellon University study concluded that employers risked claims of discrimination by reviewing applicants’ social media profiles, based on employers being more likely to screen out candidates based on their personal information such as ethnicity.

While these studies weigh against employers searching applicants’ social media before making hiring decisions, there is certainly logic to the contrary, as employers are entitled to view publicly-accessible information about their applicants, and thorough employers will want to learn as much as they can to do their due diligence in making important hiring decisions.

Laws, best practices, and public opinion regarding social media in the workplace will continue to evolve in 2015. Employers would be wise to look at the most recent developments before making any major decisions affecting their social media policies and practices.

ARTICLE BY

Douglas M. Oldham

Barnes & Thornburg LLP

Social Media Marketing for Lawyers: What It Can Do for You, How to Do It Right

Many attorneys I talk with want to know if social media will deliver real value for the investment in time and effort that it takes to develop and implement a social media marketing program.

Here is what I tell them:

Social media will help you build trust, but it will not make a “bad” reputation better. Social media is a meritocracy – if you’re good, people will know it. Conversely, a bad experience will also get talked about. Building trust is crucial for attorneys, and social media helps you build trust by providing a robust platform for sharing your particular insights and knowledge. Once people trust that, they will use you and recommend you to others.

Social media will get you leads, but it will not turn them into paying clients. People who follow you on Twitter, are a fan of you on Facebook or interact with you in any way on a social network have indicated an interest in what you have to say. These are leads. To capitalize on them and turn them into paying clients, however, requires effort on your part in following up.

Social media will give you visibility, but it will not replace a good client experience. Social media is a 365/24/7 world, allowing you to engage with prospects at any time, and they with you. You must be vigilant about responding to posts and questions the same way you would in responding to a prospect that calls or emails you. Every point of contact is an opportunity to make a great impression.

Social media is the fastest way to build your sphere of influence, but it won’t happen overnight. Your sphere of influence is defined as how many people know (1) who you are, (2) who you help, and (3) why you are different. If you only have 20 people who know enough about you to send you the right referrals, then you are severely limited in how much you will be able to grow your practice. Social media is a long-term play, and you need to commit to spending the time and money (either yours or hiring someone else) to achieve success.

ARTICLE BY

Stephen Fairley

The Rainmaker Institute

NLRB Shows Some Restraint in its Protection of Employee Social Media Communications: Employee Termination Arising From “Egregious” and “Insubordinate” Facebook Posts Was Legal Under the NLRA

In the wake of the NLRB’s aggressive crackdown on social media policies, many employers have asked: “Is there any limit to what employees can post on social media about their employers?” It appears that there is. Just last week, a former employee of the Richmond District Neighborhood Teen Center in San Francisco learned this the hard way when the Board dismissed his complaint that the Center violated Section 8(a)(1) of the National Labor Relations Act after it pulled a rehire offer after it discovered that he particpated in an inappropriate Facebook exchange.

During the 2011-2012 school year, Ian Callaghan and Kenya Moore both worked for the Center’s afterschool program—Callaghan as a teen activity leader and Moore as the teen center program leader. In May 2012, the Center held a staff meeting during which it solicited and received both positive and negative feedback from its staff, including Callaghan and Moore. In July 2012, Callaghan and Moore received letters inviting them to return to the Center for the 2012-2013 school year; this time both as activity leaders.

The following month, Callaghan and Moore communicated over Facebook about (i) refusing to obtain permission before organizing youth activities (“ordering sh*t, having crazy events at the Beacon all the time. I don’t want to ask permission…”; “Let’s do some cool sh*t and let them figure out the money”; “field trips all the time to wherever the f#@! we want!”), (ii) disregarding specific school district rules (“play music loud”; “teach the kids how to graffiti up the walls…”), (iii) undermining leadership (“we’ll take advantage”), (iv) neglecting their duties (“I ain’t go[]never be there”), and (v) jeopardizing the safety of participating youth and the program overall (“they start loosn kids I aint helpin”; “Let’s f#@! it up”). When the Center’s administration became aware of the postings, it revoked the offers to rehire, and Callaghan filed a charge with the Board.

Under Section 7 of the Act, employees have the right to engage in concerted activities for their mutual aid and protection, including complaining to one another about the terms and conditions of their employment. In that vein, an employer may not take adverse action against employees for exercising their Section 7 rights without violating Section 8(a)(1) of the Act. That said, employees can take it too far and lose the protection of Section 7 when their conduct is particularly egregious or of such a character as to render the employees unfit for further service.

Here, although Callaghan and Moore previously had engaged in protected activity during the May 2012 staff meeting when they offered negative feedback about the Center, and although neither Callaghan nor Moore had ever engaged in any acts of insubordination, the Board held that they lost the Act’s protection because “[t]he magnitude and detail of insubordinate acts advocated in the [Facebook] posts reasonably gave [the Center] concern that Callaghan and Moore would act on their plans, a risk a reasonable employer would refuse to take.”

Several years ago, the Richmond District Neighborhood Center decision may have been a foregone conclusion. But in light of the current Board’s aggressive approach to Section 7 protections, the decision provides employers with reassurance that Section 7 has retained at least some outer bounds. The decision provides some guidance for defining “insubordination” in social media policies, for example, to include communications pervaded by detailed plans to jeopardize the employer’s very existence, violate legally enforceable employer policies, or neglect job duties.

For a full discussion of the Board’s recent approach to social media policies, see George Patterson’s September 3, 2014 posting “NLRB Continues Aggressive Crackdown on Social Media Polices.”

ARTICLE BY

Erin Cornell Horton

Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

NLRB Finds Facebook Posts Go Too Far for the Act's Protection

As we reported previously, social media issues are troublesome for employers who must navigate unsettled or even conflicting federal and state laws and decisions. A recent ruling from the National Labor Relations Board (NLRB) demonstrates that employers can still protect their business against inappropriate online activity by employees. Specifically, the NLRB ruled that an Employer acted lawfully in rescinding two employees’ rehire offers, finding that the Facebook conversations between the two were so egregious as to lose protection under the National Labor Relations Act and render the two individuals unfit for further service with the Employer.

The Employer operates a Teen Center that provides afterschool activities to students. During a period between school sessions, just before the employees would have been rehired for the coming school year, the two individuals engaged in a series of Facebook conversations during which they repeatedly talked, in profane terms, about what they intended to do when they returned to work. The messages contained numerous indications that the two would refuse to follow the rules and policies of the Employer, would refuse to work with management or get required permissions, would engage in various acts to undermine the school’s leadership, and they detailed specific acts of intended insubordination.

The NLRB agreed that the exchange of messages (which certainly discussed their displeasure over working conditions) was “protected concerted activity” under the Act. Normally, such protected activity cannot be the basis of any adverse employment action. However, the Board determined that the conduct constituted “pervasive advocacy of insubordination which, on an objective basis, was so egregious as to lose the Act’s protection.”

In finding the conduct unprotected, the Board relied on the fact that the individuals repeatedly described a wide variety of planned insubordinations in specific detail. According to the Board, these acts were beyond brief comments that might be explained away as a joke or hyperbole divorced from any likelihood of implementation. Rather, the Board concluded that the magnitude and detail of insubordinate conduct advocated in the posts reasonably gave the Employer concern that the two individuals would act on their plans, a risk that a reasonable employer would refuse to take by returning the individuals to the workforce. The Board concluded that the Employer was not required to wait for the employees to follow through on the misconduct they advocated.

This decision gives employers some relief that there are limits to what employees can say on social media, even if the subject of their conversations or postings is “protected” and “concerted”. However, before an employer can take adverse employment action against an employee who engages in such activity, the employer must be able to demonstrate that, on an objective basis, the activity is egregious and pervasive and is of such magnitude and of such detail that it is reasonably likely to be acted upon rather than being mere hyperbole.

[Richmond District Neighborhood Center, 361 NLRB No. 74 — October 28, 2014]

ARTICLE BY

Howard L. Bernstein

Neal, Gerber & Eisenberg LLP

California Class Action Suit Alleges LinkedIn Violated Fair Credit Reporting Act (FCRA) By Providing Employers With Reference Reports

Another interesting case filed in California recently highlights the myriad risks employers face when using social media as part of their hiring process.

A class action lawsuit was filed in the Central District of California against LinkedIn based on allegations that thereference reports LinkedIn generates for premium subscribers, including many employers, violate the Fair Credit Reporting Act(“FCRA”). According to the plaintiffs in Sweet, et. al. v. LinkedIn Corporation, an employer who is a premium subscriber can generate a report containing the names, locations, employment areas, current employers, and current positions of all persons in a user’s network who may have worked with a job applicant and also contact the applicant’s “references.” An employer, according to the allegations, can run such a “reference report” on a job applicant without the applicant receiving any notification whatsoever. Thus, as the complaint alleges, “any potential employer can anonymously dig into the employment history of any LinkedIn member, and make hiring and firing decisions based upon the information they gather, without the knowledge of the member, and without any safeguards in place as to the accuracy of the information that the potential employer has obtained.” The complaint claims this activity potentially violates both the FCRA’s purposes, which include safeguards as to the accuracy, fairness, and privacy of the information that a potential employer obtains, and the FCRA’s customer notification requirements.

This latest lawsuit against LinkedIn serves as another example of the complex legal issues and risks that an employer faces when using social media to make recruiting and hiring decisions.

ARTICLE BY

Alexander Nestor

Nisha Verma

Allen Matkins Leck Gamble Mallory & Natsis LLP

Common Social Media Profile Picture Mistakes

How you present yourself on social media can either draw clients to you, or send them packing.

What’s the first thing you notice about someone’s social media account? Their profile picture. There are over 645 million active Twitter users, 829 active daily users on Facebook, and over 200 million users on Instagram. Profile pictures are the first thing any of these users will see when your account is searched or suggested on social platforms, so it is vital that your picture send the right message.

Do’s and Don’ts of social media profile pictures:

DON’T make yourself so far away that the person has to play a strategic game of “Where’s Waldo” just to identify you.

DON’T filter your picture so heavily so that the viewer can’t even imagine what the original looked like.

DON’T pose like you’re on the cover of a magazine. There is a time and a place for glamour shots, but your professional profile is not it.

DON’T set your profile image as a picture of you and your spouse. Marriage is a beautiful thing, but this is your profile, not yours and your significant other’s.

DON’T make your profile picture your firm’s logo. While it is important to gain exposure for your firm, your profile picture isn’t the ideal place to do so. A profile picture should personalize you as an attorney. You can, however, put something like a logo as your cover photo so that it is the background to your profile image.

DON’T leave your image as the default, such as the signature Twitter egg. Doing this will not only look impersonal, but also come off like you didn’t care enough to put in the effort to change the photo.

DO follow these guidelines for profile pictures:

Crop the picture so it is an up-close, professional shot of your face.
Make sure it is well-lit and that you’re looking directly at the camera.
Smile! This can showcase how personable you are and also be inviting to the people who see it.
Don’t have anything directly behind you; it is ideal to have professional head shots in front of a green screen.
Your profile picture needs to be large enough that it can be recognized without actually having to click on the image. Be mindful of general size requirements across social media networks.

ARTICLE BY

Samantha Hicks

Consultwebs.com, Inc.

New Jersey Suit Against School District Regarding Tweet Settles

As previously reported, in a March 2014 filing titled H.W. v. Sterling High School District, a New Jersey high school student filed suit claiming school officials had violated her constitutional rights when they punished her for content she posted on Twitter which criticized Sterling High School’s principal.

The settlement, which was approved by the Sterling High School District in April and entered by the Court on July 29, 2014, provides that the district will reimburse the student $9,000 for her legal fees. However, the district will not pay additional damages to the student. In addition, the school district agreed to revoke punishments imposed against the student for her Twitter postings, expunge documents related to the incident from the student’s academic record, and abandon its attempted requirements for drug testing of the student. Specifically, the agreement provides that the student is eligible for graduation upon completion of outstanding assignments, is allowed to attend the senior class trip to Florida, and if the student does not seek press coverage or disclose the settlement terms she will be allowed to participate in prom and the graduation ceremony.

Beyond agreements directly between the school district and the student, the settlement also calls of the school to modify its student handbook to specify that administrators “may be monitoring student discussions on Facebook, Twitter or other social media outlets and may seek to impose penalties in accordance with the student code of conduct if such discussions cause a substantial disruption at the school.”

ARTICLE BY

Jason C. Gavejian

Jackson Lewis P.C.

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“Jurispect will help fundamentally transform how companies operate by providing organizations with a real-time analytical view of both exposure and opportunities to take proactive steps to manage legal and regulatory risk.” – Catherine Hammack

“Foxwordy is ushering in the era of the social age for lawyers and for the legal industry.” – Monica Zent

“There is an amazing opportunity to use data analytics and technology to create a competitive edge for lawyers amidst all of this information…” – Daniel Lewis

Like this:

The EEOC Turns Its Attention to Social Media

The NLRB Continues to Refine Its Position on Social Media Policies

States Continue to Limit Employers’ Access to Employees’ Social Media Accounts

Academia is Drawing Its Own Conclusions Regarding Social Media in the Workplace

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Do’s and Don’ts of social media profile pictures:

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