Tag: Legal Technology

When Is Research Misleading?

Sue Stock Allison, the Managing Director of The Brand Research Company, as Sister Company to Greenfield / Belser Ltd.  was recently the National Law Review’s recent Business of Law Guest Blogger.  Sue shared five key things for Law Firms to keep in mind when performing opinion research.  

Sometimes, when it comes to opinion research, what you see is not necessarily what you get. For instance, focus group moderators can inadvertently (or purposely) create bias among recipients. Or when questioned about buying habits or intentions, people may tell questioners what they want to hear, rather than what they actually feel.

I can’t count the number of times I’ve cautioned against considering all research valuable or even accurate. But there are ways to ensure that your findings are sound when undertaking research among your clients, your organization members or your markets.

Here are five tips for making sure the research your firm is using is useful:

1. Know your Goals

I know you’re thinking, “Of course, we need goals!” but, alas, research can be initiated for nutty reasons. My personal favorite: “Everyone else is doing it.” That everyone else is doing it may make initiating a new study an excellent recommendation, but you still must match your research goals to your business goals. Do you define success by a measurable return on the research investment, or do you just want to touch your most loyal clients? Are you trying to guide or justify a specific marketing expenditure or, more loosely, gauge awareness in a particular market? Knowing what you want to achieve is crucial to obtaining the data you need. Detailing the specific information you want to know, even using hypothetical statements of finding, can help you to make your objectives clear. In this case, the cart (what you wish to carry away from the research) truly comes before the horse.

2. Fully Define Your Target Audience

Do you put stock in those general market studies that “rank” your business better or worse than others? Syndicated studies are great gossip and provide fodder for your website’s homepage

(“We’re #1 in reputation for excellence for the third straight year!”), but there is limited value in being considered number one for anything if those who provide the ratings do not purchase or even influence the purchase of your services.

When conducting research, or using research conducted by someone else, you need to ensure that respondents include individuals whose opinions you really need to know. Do you want to know what your top 25 clients think, your clients with the highest potential or your clients who seem to be fading away? Are you looking for guidance from prospects for a specific service, in a specific geographic area, or from a certain type of business? If existing research was conducted among exactly the right group of individuals–excellent! If not, you’ll need to conduct your own research to get what matters to you.

3. Select the Best Methodology

As popular as they are, focus groups are one of the most misused research methodologies. They are a qualitative research method, statistically invalid, which necessarily makes them ill-suited for drawing conclusions about habits or actions. Whether you conduct one session with 10 individuals or 10 sessions with a total of 100 individuals, they are never conclusive. Focus groups are, however, an excellent way to come up with ideas about proclivities or intent that can later be tested with quantitative surveys. Focus groups can help you discover undetected problems with an ad campaign, potential challenges of a new service offering, or the usability of a website design. But when you want to understand what is most important among a number of choices, what really drives client loyalty, or how to best position your business in a market—these objectives require a quantitative method that can provide the metrics you need.

4. Ask the Right Questions the Right Way

Another common problem with focus groups and other forms of research is how easily respondents can be led to particular responses, and how hard it is for them to accurately assess and report their own motivations. When you develop your discussion guide, in-depth questionnaire or survey instrument, you need to make sure the questions are not leading, that your respondents are not primed to answer in a particular way. (In fact, when conducting focus groups, I often ask participants to write down their initial impressions before discussion even begins.) For telephone or in-person interviews, make sure your interviewers are skilled in the techniques that will bring even subconscious motivations to the surface.

5. Interpret with Caution

How do you know if your findings are truly reliable? Even if you’ve clearly laid out your goals, comprehensively defined your target, picked the best methodology, designed an effective research instrument, and used excellent interviewers, the results can still be misleading if your interpretation of the findings is flawed. Reliable interpretation begins with proper analysis of the data, which requires understanding how the target population was selected and ensuring that your resultant data includes the information needed to feed your conclusions. Perhaps the most common problems are conducting quantitative analyses with too few responses, or having a response rate that is too low–both of which beg the question: How do the non-respondents differ from those who are included in the research?

So, is research misleading? It certainly can be, but by using these guidelines, you can take the necessary steps to ensure that your research will more accurately provide the information you need.

©2011 Greenfield/Belser Ltd.

 

eDiscovery & Social Media

The National Law Review’s featured guest blogger last week was Meredith L. Williams of  Baker Donelson provides some great insight on discovery issues related to social media sites: 

Social media is not going anywhere, so we must learn to live with it and use it to our advantage and within the confines of the newly articulated and always changing rules.  If ever a doubt, one can look to the Nielson Report (“What Americans Do Online: Social Media and Games Dominate Activity,” Aug. 2, 2010) that states two-thirds of the internet population utilize social media sites.  Internet users now spend more than 10% of their online time on social media sites, and usage is constantly increasing.  With this rise in social media usage, the issues surrounding ediscovery in the realm of social media data is an important consideration of litigation.

The definition of legal discovery is locating all documents that are relevant to support the litigation.  But how does ediscovery work when the content is not owned or controlled by the business? How does a business preserve data that is outside of its firewall? Finally, how does one seek relevant information held on social media sites?

Social media sites are not like email or word processing documents when it comes to preservation. These sites are operated outside of a business’s firewall by a third party. Data is normally scattered on many sites and connected by many people or custodians.  Finally, the retention policy or schedule of a business does not affect data located on social media sites.   When a business maintains social media pages, it has a duty to preserve the data that may be relevant in anticipated or actual litigation.

Seeking information from social media sites can be difficult at best.  Many times discovery of this data must be gained through consent or authorization of a third party, which only causes an extra, and often expensive, burden.  Each third party is different in how it maintains the data, and each has the right to delete any content for violation of its terms of use policy, at any time. That deleted information could be relevant to litigation.

Unfortunately for businesses, the courts are only beginning to outline the duty of preservation and the right to discover the information from social media sites.  The best line of defense for many businesses is to develop internal policies and training programs to educate all employees of the risks of using social media.  In addition, new software now exists that can aid in preserving data.

Duty to Preserve

The 2006 Federal Rules of Civil Procedure amendments changed the discovery rules to allow a party to request “electronically stored information” within the “possession, custody, or control” of the responding party.  A duty to preserve potentially relevant evidence exists when litigation is “reasonably anticipated.”  In addition, parties who fail to preserve electronically stored information (ESI) are subject to penalties. Social media data fits the definition of ESI; thus, businesses must deal with the issue of preserving and possibly producing social media data that falls under their data retention policy.

Due to the fact that social media sites are owned and controlled by third parties, vendors are beginning to develop technology to capture dynamic web pages for preservation.  The first few companies in this market include Iterasi, Smarsh, Arkovi and LiveOffice.  Additionally, Adobe may be used to capture web images in static format.  These are but a few examples of new technologies that businesses are considering to meet their duty to preserve and produce ESI.

Recent Case Law

Additional issues remain – whether the information on social media sites is considered private, whether it is discoverable and whether it is admissible as evidence.  Recent case law has addressed these as yet unanswered issues.

In Guest v. Leis, 255 F.3d 325 (6th Cir. 2001), the court held that there is a lack of expectation of privacy regarding public postings on social media sites.  The user has the right to select privacy preferences on his social media sites.  Certain settings allow the public to see limited information and authorized, connected individuals to have greater access. In addition, many social media site privacy policies specifically state that certain postings are subject to a weakened privacy expectation.  Courts have generally held that when a user makes information available publically via their privacy settings, there is a lower expectation of privacy and, therefore, the information is discoverable.

Jumping ahead to the current year, we find EEOC v. Simply Storage Mgmt., LLC, No. 1:09-cv-1223-WTL-DML (S.D. Ind. May 11, 2010).  In this case, the court compelled production of relevant content from social media sites.  The court discussed discovery of social media site data as simply “requir[ing] the application of basic discovery principles in a novel context.”  The facts of Simply Storage Mgmt, involved the defendant seeking production of social media site profiles and communications from Facebook and MySpace.  The court ordered the plaintiff to produce the content that was relevant to the case.  The plaintiff argued that requiring such production would infringe on his privacy.  However, the court held that the expectation of privacy is not a basis for shielding discovery.  In addition, the court found that any privacy concern therein was lessened due to the fact the information had already been shared.

Earlier this year, Crispin v. Audigier (C.D. Cal.) (May 26, 2010), brought us a new ruling regarding social media and the Stored Communications Act (SCA).  In this case, the court was reluctant to allow discovery of private social media email communications.   The case involved a copyright infringement claim.  Audigier subpoenas the private social media messages of Crispin.  A magistrate judge disagreed with Crispin’s arguments that these communications fell under the SCA, preventing the provider of the messaging service from releasing private communications, because the social media sites messaging services are used solely for public display.  However, the district court reversed the ruling, holding that Facebook and MySpace allow private message or e-mail services which are separate from the general public posting.  This case held that the SCA protects Facebook and MySpace messages that aren’t publicly available.  Therefore, these messages cannot be subpoenaed in civil litigation.  In addition, the court left the door open for further clarification, noting that “Facebook wall postings and the MySpace comments are not strictly ‘public,’ but are accessible only to those users plaintiff selects.”

On the other side of the country, we find a slightly different ruling with Romano v. Steelcase Inc., 2010 WL 3703242 (N.Y. Sup. Ct. Sept. 21, 2010).  TheRomanocourt allowed discovery of an entire social media site with all current and deleted postings.  The court ordered the plaintiff to provide the defendant with access to private postings from two social media sites. The court reasoned that information contradicting the plaintiff’s claims was included on the public sections of the plaintiff’s social media site and, therefore, it was reasonable to believe that the private sections might contain additional relevant information. The court even cited Facebook and MySpace policies, which warn users they should have “no expectation of privacy.”

Even if one is able to surmount the difficult hurtle of obtaining data from a social media site, an equally daunting challenge remains – getting the data admitted.  The main issue with admissibility is authenticity; spam, viruses, hackers and the like make social media sites susceptible to manipulation or fraud.   For this reason, courts have consistently been cautious when admitting social media data. In some cases, judges have become online “friends” with a party in order to authenticate postings, photos, captions and comments. (Barnes v. CUS Nashville, LLC).  Other courts have allowed printed copies with time date stamps to corroborate facts. (Treat v. Tom Kelley Buick Pontiac GMC, Inc.). Finally, some courts have used circumstantial evidence associated with the creation of the data (i.e. metadata and hash tags) to authenticate social media content.  (Lorraine v. Markel Am. Insur. Co.).  Admissability remains  an area of concern as the use of social media data in discovery becomes the norm.

Discovery of Social Media Data

A lawyer must decide early on whether relevant information exists on social media sites.  Within that evaluation, the costs to preserve, collect, review and produce the social media information should be considered.

Start discovery of social media by conducting large sweeping web searches for public social media sites of adverse parties or adverse witnesses.  Many individuals do not lock profiles or use privacy settings; therefore,  all postings, messages, comments, etc. are open to the public.  Preserve the sites with date stamps.

If an individual’s social media sites are set to private, and, therefore, not open to the public, what can a lawyer do?  Many boards of ethics do not allow lawyers to “friend” anyone to gain access to private profiles of information (NY State Bar Association Ethics Opinion 843 (Sept. 10, 2010)). So, instead of friending an individual, use discovery requests.  Start with a document request asking for all postings and messages that are related to and relevant in the litigation.  One can also consider requesting an access wavier to social media sites that allow for complete access to the site.  LinkedIn has a standard wavier located on its site. Finally, ask for all social media identifications used by the adverse party in an interrogatory.  Regardless of what direction taken, social media should be a part of the ediscovery process.

Conclusion

In conclusion, a business should take inventory of what social media sites are being used within the organization.  Then, set policies to help educate all employees of the risks regarding social media usage.  Finally, decide if backup software is needed to help with preservation and production of the business’s own social media data.  Regardless of retention schedule taken with social media, plan to always show the court that you’ve done your best, which is all that is expected.

For lawyers, be prepared to incorporate social media into an edisovery plan.  Start early within the litigation.  Draft standard document requests, waiver forms or interogatories around social media production.  Finally, be aware of the changing legal landscape on privacy, discoverability and admissibility, as these areas will continue to change, more and more rapidly in the future.

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

Legal and Risk Management Implications of Cloud Computing

We’ve been seeing a whole bunch of things at the National Law Review about the legal risks and risk management issues related to cloud computing.  Accordingly, we’d like to share some of the better articles we’ve come across on the NLR and on Twitter…

For an Overview of What Cloud Computing or SaaS is and the Advantages and Disadvantages for Businesses, Especially Law Firms…..

Are You Ready For the Cloud? from Baker Donelson

Lawyers Should Not Be Wary of SaaS and Cloud Computing by Niki Black of Lawyerist.com

What Cloud Computing Really Means from InfoWorld.com

What Lies Ahead? Business and Legal Issues in the Coming Decade from Much Shelist

For Risk Management and Legal Considerations Related to Cloud Computing or SaaS…..

The Cloud and Your Data from Risk Management

The Legal Issues Around Cloud Computing by Amit Agarwal of Digital Inspiration

Privacy and Information Security for Emerging Businesses by Poyner Spruill

For Specific Things to Consider When Choosing a Cloud Computing Provider….

Putting Cloud Data Storage Providers to the Test by Risk Management

7 Questions For Any Cloud Based Service from the Legal Typist, Inc.

How to Evaluate Cloud Computing Providers by Jason Baker – Data Center Knowledge

Copyright ©2010 National Law Forum, LLC

USPTO Extends and Expands Patent Application Peer Review Program

Under the category of “Who Knew” — National Law Review guest blogger James M. Singer of Pepper Hamilton LLP lets us know about  a US Patent Office Pilot Program which invites public participation in the patent application process.  

The U.S. Patent and Trademark Office has announced an additional one-year pilot of its “Peer To Patent” pilot program, which invites public participation in the patent application process.  The new program launches on October 25, 2010 and will be available through September 30, 2011.

The Peer-to-Patent program is a collaboration between the USPTO, the New York Law School, and others in which participating patent applications receive public scrutiny through comments and prior art submissions on the Peer-to-Patent website.  The peer review period begins approximately one month after the patent application is published, and it lasts for three months.  After the peer review period, the project sends the prior art and comments to the USPTO, and the USPTO advances the application earlier in its queue for examination.  Both the USPTO and the applicant can consider the public comments and submitted prior art during the examination.

Applications that participate in the program can receive the benefit of quicker examination than they would have received if they had merely waited their ordinary turn at the USPTO.  This is especially useful for technologies such as software and telecommunication inventions where the typical wait time to first Office Action often is several years.  In addition, many commenters have suggested that the fact that a patent was peer reviewed patent could be useful in situations such as challenges to validity in litigation — in order words, the fact that a patent went through the program may make a jury less likely to find the patent invalid.

According to the USPTO, the Peer to Patent Program “opens the patent examination process to public participation in the belief that such participation accelerates the examination process and improves the quality of patents. Under the pilot program, inventors can opt to have their patent applications posted on the www.peertopatent.org website. . .. After the review period, the prior art is sent to the USPTO patent examiners for their consideration during examination.”

Changes in the new pilot include:

  • eligible technology classes have expanded to include software, telecommunications, and others;
  • peer review time is reduced to three months (from the previous four months);
  • up to 1,000 applications will be accepted into the program; and
  • peer reviewers may submit up to six items of prior art per application (down from the previous limit of 10).

The original Peer To Patent pilot ran from June 2007 until June 2009.  The original pilot included 189 patent applications, and it received over 600 items of prior art from peer reviewers.  To participate in the program, a pending application must not have published more than 30 days before filing a consent form, and it must fall into an eligible technology class.  Eligible classes include, among others:

  • 260 (certain subclasses) – chemistry of carbon compounds,
  • 380 – cryptography,
  • 424 (certain subclasses) – drug, bio-affecting and body-treating compositions,
  • 702, 703, 705-715, 717 and 718, which relate to certain types data processing and computers, and
  • 726 – information security.

The full list of technology classes eligible for the 2010 pilot is listed at www.uspto.gov/patents/init_events/class_subclasses_for_2010pilot.jsp.  For more details about the Peer to Patent program, visit the Peer to Patent website at www.peertopatent.org.

Copyright © 2010 Pepper Hamilton LLP

Are You Ready For the Cloud?

Meredith L. Williams of Baker Donelson is the National Law Review’s Business of Law Featured blogger.  Meredith discusses the pros and cons of cloud computing for law office operations. 

Introduction

Is cloud computing a shift or is it the next natural step in strategic business development?  Is the cloud  the right answer for your law firm or company?  Is the cloud the right answer for all applications and infrastructure or is it just a piece of the puzzle?  These are a just few of the many questions law firms and companies are asking themselves as they consider a move to the cloud.  There are many reasons why cloud computing is a very seductive solution to the cost cutting environment we find ourselves dealing with today.  However, there are many issues, legal and organizational, that must be considered to determine the validity of the cloud for each environment.

The “cloud” means different things to different people.  For most of us, we have been using cloud computing technology for years without defining the term.  Example cloud environments are extranets, legal research websites, online file storage and much more.  By definition, the cloud is a metaphor  referring to internet based computing in which applications, data, software or network functions are stored on remote servers.  There are presently three types of cloud environments:

  1. Infrastructure as a service or hardware cloud which serves as a data center,
  2. Software as a service or the software cloud, and
  3. Desktop applications operated within a hardware cloud.

Although we have been using the cloud in the past, the difference at this time is the potential of using the cloud for core business applications.

Why the Cloud?

For strategic business leaders, the cloud offers a way to minimize cost, increase mobility, prepare for disaster recovery, offer device flexibility, collaborate on demand and reduce downtime. Let us take a look at the different sections of a law firm and see how the cloud can affect the overall business functions.

In the information management world collaboration is key.  The more a firm can offer needed collaboration tools with a client, the more the client becomes entrenched in that firm culture.  The cloud provides law firms with a unique opportunity to offer clients a collaborative environment in an on-demand system.  The client can truly be connected with the law firm from anywhere with any device in the world.

Fewer applications or errors and easier upgrades are phrases application and support specialists love to hear.  The cloud environment can make them a reality.  The cloud offers software functionality to users regardless of locality or device.  Therefore, fewer setups, downloads and support hours are spent dealing with application changes and upgrades.  This new environment aids a law firm in flexibility allowing the firm to change applications as rapidly as the needs of the users change.

The main concern of most in the applications world is support.  How do current structured IT staffs support an environment when the applications are not local?  What will be the skill set of an applications and desktop support staff individual with applications in the cloud? These are areas IT departments must address before making the move to the cloud.

The cloud offers business and cost savings in a very unique way.  The upfront costs of moving to the cloud are large.  However, over time the cost savings from increased efficiency and reduced hardware, software, support and downtime help to offset the upfront costs.  The biggest hurdle for cloud computing may not be cost but instead data security.  It is easy to argue that a law firm or company can protect its data when it lives in a server room on site with a locked door but how do IT departments protect their data when it sits thousands of miles away on servers not owned by the company?  Law firms will need to determine if this is a deal breaker or is this an area of contract negotiation with the cloud provider.

What are the contractual issues?

Now that we see the potential of cost savings, flexibility, mobility and more,  we will address the contractual issues and concerns each law firm will need to consider.  The first step in any contractual negotiation is due diligence of both parties.  Law firms must evaluate news, law suits, current events, financial stability, customer references, provider longevity and any other possible information that could affect the contractual obligation fulfillment.  Only then can the contract negations begin.

The largest areas of concern in the cloud are data security and privacy. A demonstration of these concerns is seen in the 2009 complaint filed with the Federal Trade Commission (FTC) by the Electronic Privacy Information Center (EPIC) regarding cloud services of Google.  In the complaint, EPIC alleges Google did not adequately safeguard the confidential information obtained from clients.  This complaint raises serious questions for the vendor to address and draft into the contract.  Questions to ask include where the data is stored, what are the physical security measures to protect the data, is a shared resource used in storage, what is the security during transmission, what are the disaster recovery measures and what are security incident response times. In addition, questions around data migration and transition should be addressed.

Another issue to consider is legal compliance.  Highly regulated industries such as health care facilities falling under HIPAA must think twice about moving information to the cloud.  Vendors are expected to maintain the data at the same standard required of the company.  This can become a contractual deal breaker if the vendor will not agree to the higher standards.   The regulated industries affect law firms that maintain work product and client information for clients working in these regulated industries.  Law firms must now consider the standards guaranteed to their clients when moving to the cloud and verify the vendor will agree to that level of maintenance.

A point that is only just beginning to emerge in the cloud discussion is the level of control and ownership of the servers and data existing on the servers.  Questions to consider are data termination and vendor claims and rights to the data.  The control influences discovery, liability and litigation hold processes.  Negotiation can help prevent future claims of spoliation.

Performance, reliability and service features shape the day to day experience of users in the cloud.  Therefore, inquiring about disaster recovery set up, scalability of applications, process for upgrades and feature releases, suspension of services, offline capabilities, base subscription services and add-on services of applications can affect the contract obligations of the vendor, expectations of the client and most importantly cost of the contract.

Global performance and legal compliance of data across international borders are concerns for many large law firms.  Is the vendor only offering a cloud solution that is U.S. based?  This is a discussion point for the contract and can possibly be a deal breaker when adhering to EU standards of compliance.

All of the above contract negotiation points lead to the largest decision, cost.  What is included in the cost of the cloud services?  What is not included?  And the final and most important question to ask, whether the move to the cloud is a benefit if the law firm already owns the software licenses and hardware to maintain the status quo.

What will the courts be deciding?

The courts are well aware of the cloud computing movement.  In Oregon v. Bellar, 217 P. 3d 1094 (Or. App. 2009), the court took note that 69% of U.S. residents that are online utilize at least one cloud site. Due to the unique custodial issues involved with cloud computing, the cloud can present challenges to e-discovery and jurisdictional questions. Decisions concerning these issues are just starting to appear but with conflicting rulings.  The question of what the courts will decided has yet to be seen.

What will the future bring?

As we stated earlier, many of us have been using the cloud for years without calling it the cloud.  The difference surrounds the movement of core business functions such as email and document management to the cloud.  In the past, these features have been kept at a local level.  But as you see above, this is changing.  As more and more cloud providers make their way to the forefront, this movement will only increase.  The question is whether the cloud is the right solution for your law firm?

©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. 901-577-2353 / www.BakerDonelson.com

 

 

Fast Track Mastership of Legal Social Media- One Day Seminar / Webinar Oct. 21st Washington DC

The National Law Review would like to make you aware of a one day seminar / webinar presented by MyLegal.com designed to help lawyers gain a fast track mastership of legal social media. 

“I don’t think it’s too late to embrace social networking, it just rather disappoints me that other professions use these technologies, and lawyers for some reason are always rather late to the party. I have little doubt that within five years, social media, social networking systems, will play a central role in the daily lives of lawyers.”  Richard Susskind, September 2010.

The conference will be held on Thursday, October 21, 2010, at the Georgetown University Hotel and Conference Center in Washington, D.C. The conference will sell out at 300 on-site participants, so we will be introducing to the legal community a new technology called SMASH.  This technology aggregates the video stream of the sessions, along with the tweets, blogs and photos related to the conference, in one convenient landing page, allowing off-site attendees to experience the conference in a unique and interactive way.

By following the conference Twitter conversation directly from the SMASH page, off-site attendees can join in the live conversation while simultaneously seeing the speaker and checking out the live conference photos.  These are interactions and connections that might not otherwise have been made. 

After the conference, registered users will have access to the video of the sessions, along with the speaker presentations.  The sessions will also be available via iTunes, allowing registered users to listen and learn while on the way to work, running errands or housework (ugh)!  Multi-tasking is King!  After listening to the sessions, users can continue the conversation and commentary online.

Conference speakers / topics scheduled to be included are:

Matthew Asbell, Esq., Certified Legal Social Media Strategist will speak on the use and protection of trademarks in social media marketing.

Nicole Black, Esq., founder of lawtechTalk.com and co-author of “Social Media for Lawyers: The Next Frontier” will speak on social media for lawyers.

Larry Bodine, Esq., legal marketing expert and author of the Lawmarketing Blog will speak on business development with LinkedIn.

Steve Crandall, J.D., expert in digital media and business applications of social networks will speak on social media and the law.

Adrian Dayton, Esq., author of “Social Media for Lawyers: Twitter Edition” and the “Legal Marketing: Social Media Edition” blog will speak on starting to bringing in business with social media

Carolyn Elefant, Esq., creator of MyShingle.com, the longest running blog on solo and small firm practice, and co-author of “Social Media for Lawyers: The Next Frontier” will speak on social media for lawyers.

Sharon Nelson, Esq., author of the electronic evidence blog “Ride the Lightning” and co-host of the ABA podcast series “The Digital Edge:  Lawyers and Technology” will speak on on social media: ethical, compliance, E-discovery and liability implications.

Conrad Saam, runs marketing for Avvo, where he oversees the firm’s SEM, SEO, social media, online marketing, email and web analytics initiatives will speak on getting the most out of Avvo.

John Simek, co-author of “The Electronic Evidence and Discovery Handbook: Forms, Checklists and Guidelines” and “Information Security for Lawyers and Law Firms” will speak on on social media: ethical, compliance, E-discovery and liability implications.

For more information, conference schedules and registration forms, please visit:  http://mylegalmedia.com or call 253-405-7910.

How Extensive Is Your Experience? Insights on Law Firm Website Text.

Sonny Cohen of Duo Consulting   provides some food for thought about the same old – same old law firm website text. From Last Week’s Business of Law at the National Law Review: 

It is common for law firm websites to speak about themselves with hyperbole.  Self-important adjectives litter the site content.  Firm’s with exceptional people are one-upped by those with truly exceptional people.  Knowledge is only valid if it isgenuine. Experience, it seems comes in a variety of flavors as well. Some firms havewide experience.  For others it is deep experience.  But the most common benchmark of experience is that it be extensive.  Does your firm claim extensive experience?

Now it’s not that I don’t believe it when I read of a professional’s extensive experience. It’s just that this really doesn’t tell me anything. Worse, it doesn’t tell me anything different from the next guy who also has extensive experience. In fact, I would argue, my baseline is extensive experience. Now tell me how you’re better.

If you Google the phrase “extensive experience” there are over 6 million website pages where this value is claimed.  Using the search tool on several law firm websites, I discovered an “extensive experience” ratio of about  35% – 50% (# of appearances of “extensive experience”/attorney). So making this claim doesn’t so much separate one professional from the pack as much as it defines the pack. (Check your firm’s ratio and let me know!)

But the problem with this “extensive experience” language is not merely that it is linguistic laziness. Rather, this laziness results in failing to detail the richness, complexity and detail which this phrase references. And in so not doing, opportunities are lost for using this missing content.  You won’t be found in a search engine because, frankly, nobody is looking for “extensive experience.” And you won’t be discovered in your site search because, well, almost half of all attorneys have the same vague amount of experience. And it is all extensive.

Yes, I understand that, often, considerable descriptive detail must be concealed for privacy considerations.  Yeah, so? Content developers (copywriters) simply have to work harder to anonymize those involved. But, with a little effort, it is possible and essential to provide sufficient detail to make the stories comprehensible and relevant – and content rich.

Go the extra mile to gather the detail that elicits that sense of extensive experience. Boil it down to 3 to 5 cogent bullet points of industry and matter relevance. And post it. Your site visitor will have a better experience. This will result in more web pages consumed and possibly a longer time on the site with more opportunity for engagement. And search engines will devour the details for their ranking algorithms.  And you know how I know this? I have extensive experience.

© 1999-2010 Duo Consulting

About the Author – Sonny Cohen:

Sonny works closely with Duo’s clients to develop their online business and marketing strategy. His tactical responsiblities include: Implementing and managing paid search engine campaigns;  Consulting on and implementing permission-based email; Providing strategic online marketing consultation to law firms and others using web analytics to help drive website and business performance and Conceputalizing and implementing social media marketing

Sonny has over 30 years of business management and marketing experience,  He was a Serial entrepreneur and business marketer as an Apple Computer reseller; Internet partner in the business consulting firm Friedman, Eisenstein, Raemer and Schwartz; Director of Business Development for startup Primecom, an online e-commerce application service provider; and Director of Marketing for NextPart, Inc..  312-529-3003 / www.duoconsulting.com

Is Your Email Service Provider the Best?

This week’s Business of Law Guest Bloggers at the National Law Review are from Duo Consulting.  Sonny Cohen of Duo provides some good specifics on what to look for in an emailing service.

We recently received this question from a law firm marketer. I’ve edited it slightly for brevity and anonymity:

“Our email service is earning a big #fail at this point. We’ve used (Name Brand provider) with great success for small jobs and I’m talking with them about an enterprise solution. Do you have a provider you love (or a crappy one I should be warned away from)? What are the pros and cons of the systems you’ve used?”

The question, submitted to a listserv, engendered responses of affiliation with one ESP or another because they liked them, had no problems, or other good indications of service. But email delivery is more complex than you might first imagine and one size does not fit all. It is not (yet) a commodity. Personal recommendations of quality service or indications of being satisfied are a good start of an evaluation but an insufficient qualifier for engaging an email service provider. Like the acquisition of almost any service (legal or technical) it is important to understand requirements.

This is not intended to be comprehensive but merely to illustrate my point. Get this part and you might get there is more to the story. So let’s take a look at these simple factors:

  • What does your email subscriber base look like? gmail.com? or bigcompanyname.com?
  • How big a mailing would you execute at one time?
  • What is your mailing frequency?

If you send a lot of email frequently to corporate email addresses, the email reputation is critical to getting into the inbox of your subscriber. The better email service providers (ESPs) do 2 things. First, they manage the reputation of the email addresses from which they send the email (their IP addresses). The best ESPs offer you the opportunity to set up your own email address on their system. This will look something like email.lawfirm.com and email will come from something like sonny@email.lawfirm.com So while it still looks like your business, it is isolated from your domain (lawfirm.com) and from the email sending behavior or misbehavior of other clients of this ESP. Are you with me?

What happens if you send an email to a lot of people at the same domain such asxxxx@client.com where xxxx is lots of different people? When all these emails show up @client.com at one time, they look like spam. It may even look like an attack on the email server. The corporate email server receives these emails so you probably see these emails as being delivered. But they never make it into the inbox of the individual email recipients.

The better ESPs offer the capability to throttle the sending of emails so that they don’t look like a spam attack on an email server. It more closely resembles natural email commerce. Good commercial ESPs can afford to throttle the send of their emails. Spammers cannot because they’ve got way too much email to send. Are we getting esoteric yet?

ESPs are commercial companies and not a part of any website development company’s core competency. We have our favorites but we are not linked at the hip. Email services built into CRM systems such as Interaction, Salesforce, etc. are bulk mailers and do not have these deliverability features and a deliverability desk (personnel) focused on managing IP reputation. This doesn’t make them bad by any stretch. But it does affect deliverability performance.

Finally, the best ESPs are becoming messaging companies capable of delivering text messages and voice messages. If your communication strategy is to be first to market with targeted information, you may find that a text message alert system is a client service you haven’t yet considered. It is unlikely that your “economy” bulk email guy who is “friendly to deal with”  offers these extended and diversified contact capabilities. And maybe you don’t need it and never will.

Being able to track email performance is a common feature but it is not the test of a quality system. And these tools may not even provide accurate or complete information regarding the effectiveness of your email marketing campaigns. Even the best (i.e. more costly) ESPs come only close to precise. Third party firms like Return Path and Pivotal Veracity might provide this higher level of email evaluation and deliverability improvement.

Price is not always a guarantee that you will get better delivery services like what I’ve identified above. But a low price pretty much guarantees that you will not. For my part, I think reaching targeted contacts for a few pennies is a pretty good deal. If you are driven to cut that penny in half, you should at least know what you are getting and what you aren’t.

Whew! Hope this is helpful. Oh yeah, who do we use? ExactTarget. But remember. One size does not fit all. Think about your requirements.

Email open rate is only one indicator of email success

© 1999-2010 Duo Consulting

About the Author:

Sonny works closely with Duo’s clients to develop their online business and marketing strategy. His tactical responsiblities include: Implementing and managing paid search engine campaigns;  Consulting on and implementing permission-based email; Providing strategic online marketing consultation to law firms and others using web analytics to help drive website and business performance and Conceputalizing and implementing social media marketing.

312-529-3003 / www.duoconsulting.com

What's Hot in Marketing Technology for Law Firms?

The National Law Review’s Business of Law featured blogger is Kristyn J. Sornat of the International Legal Technology Association (ILTA) – who was a panelist at ILTA’s recent annual conference in Las Vegas.  Kristyn recaps some of the valuable information she picked up at the conference.  Read On:  

Lessons learned from the International Legal Technology Association’s Conference – ILTA 2010

For the past several years, the International Legal Technology Association (ILTA) has included a one-day marketing technology track at their annual conference. While the track originally focused on client relationship management (CRM) software (namely InterAction), it has grown to include all things related to marketing technology. This year there were four sessions:

I.   Web Analytics and Search Engine Optimization: Smart Strategies

II.   Using Technology for Successful Events

III.  ERM and CRM: Compare and Contrast

IV.  Marketing Technology Roundtable

I. Web Analytics and Search Engine Optimization: Smart Strategies

In order to stay competitive it is important that law firms utilize a search engine optimization (SEO) strategy to help improve their rankings in both branded and non-branded searches performed on Google, Yahoo, Bing, etc. This session focused on changes firms can make to their websites to support their SEO goals, including:

  • Eliminate pages with duplicate content
  • Name URL’s rather than using numbers
  • Add metadata to all pages
  • Create links between pages on your site and use meaningful phrases to describe the content to which you are linking (not just “click here”)
  • Seek inbound links to pages on your site from reputable sources
  • Push out your content as much as possible through e-mail distributions, RSS feeds, social media and syndication services – such as the National Law Review.

Also, the session covered the importance of using web analytics to track how your website is performing and whether the changes implemented are successful. Several free web analytics tools are available, including Google Analytics, Yahoo! Web Analytics and Piwik.

At the end of the session, the panelists provided the audience with 10 Questions about SEO and Web Analytics That You Should Know How to Answer.

II. Using Technology for Successful Events

This session focused on the increasing importance of e-mail communications for events and tools available to manage those communications. Two e-mail platforms were mentioned that link directly to CRM software: Tikit eMarketing andConcep. The Tikit eMarketing solution requires your firm to have in-house resources to design and send e-mails through your own server. The Concep solution involves a third-party vendor that aides in template design and uses its own servers to distribute your e-mails.

Important things to remember regarding invitations and RSVP forms:

  • Include disclaimers, the firm’s address and an unsubscribe link (important to comply with CAN-SPAM).
  • Apply alt tags for all images.
  • Use a combination of images, background color and text, rather than one big image for your invitation.
  • Link to a survey in your invitation to find out what people are interested in hearing about.
  • Link to a survey in your post-event follow-up e-mails to gauge the response of the audience, find out what else they would have liked to learn and their interest in future events.
  • Cross-market events in appropriate client alerts and other news-like e-mail distributions.
  • Personalize the e-mail with the recipient’s name in the subject line or body of the e-mail for a better response rate.
  • Use social media to promote the event to an audience who may not already be familiar with your firm.

 III. ERM and CRM: Compare and Contrast

This topic turned into a hot debate among the panelists and drew a large crowd of enterprise relationship management (ERM) and CRM vendors who were anxious to hear how their solutions would be discussed. There were three panelists from different law firms, one with only an ERM solution, one with only a CRM solution and one with both solutions in place. One of the main functions of both ERM and CRM software is tracking “who knows who” among your clients, prospects and referral sources. ERM gathers this information by monitoring e-mail traffic and possibly phone calls of your employees and brings that information into the system automatically. Most CRM systems pull this information from address books in Outlook (and other e-mail systems) and require more active participation from attorneys to be successful.

The message from the panel was that every firm is different, and selecting one or both solutions depends on the culture of your firm and its needs. If you have attorneys who won’t take the time to share their contacts through CRM software and will not object to the information being pulled automatically, an ERM solution may work for you. If you have attorneys who are concerned about privacy and want to be able to do more (such as track business development efforts, e-mail marketing lists and client information), the CRM option is the way to go. If you have a combination of needs, you might look into implementing both solutions.

During the presentation, the panelists were careful not to mention what vendors they used, but did supply the following list of ERM and CRM providers that to cater to the law firm market.

CRM Vendors

LexisNexis – InterAction

Versys Corporation – IntelliPad

Client Profiles/Microsoft – CRM4Legal

Cole Valley Software – ContactEase

Hubbard One – Contact Manager

ERM Vendors

Cole Valley Software – Relationship Discovery

LexisNexis – InterAction IQ

Hubbard One – ContactNet

BranchIt Corporation – BranchIt

 

IV. Marketing Technology Roundtable / Hot Trends in Law Firm Marketing Technology

In the fourth session, all panelists from the previous sessions returned to answer audience questions about marketing technology. The first thing discussed was what’s hot or new in the market. Below are some of the advances that are happening now or may be coming your way in the near future.

Websites: Looking at the future of law firm websites, the group saw many changes on the horizon.  One panelist described a recent demo she attended from Saturno Design that featured a new tool that essentially sets up a “mapping” feature to deliver customized content to each visitor based on what they viewed during prior visits to your site. Several panelists also predicted a blurring between the traditional law firm site and social media. Examples included pulling content from LinkedIn profiles for attorney bios or replacing the traditional newsletter and alert sections with blogs.

Video: Video was a hot topic throughout the sessions. Many firms have already begun to use this medium on their websites and in their electronic communications, adding a human element that was not possible before. Mary Tomaro, Web and Interactive Marketing Manager for Jones Day, said videos on their website have become quite popular. An important note, if your firm is comfortable using YouTube to host its videos, there are two benefits to this approach: 1) you can save the cost of purchasing software to host them yourself, and 2) you can increase the reach of the videos, as they can be spread virally and are more easily found by search engines.

Mobile Apps: To date, only a select few firms have released applications for use on mobile devices. The panelists saw this as an increasingly important trend as users move away from traditional desktop computers and use their mobile devices and other tools, such as iPads, to search for and read content. Read a blog post describing the recent success of Morrison & Foerster’s iPhone app.

Social Media: Although social media may not be a new tool, many firms have yet to establish a usage policy or firmwide strategy. As you iron out how your firm will utilize social media, keep in mind that relevance is more important than reach – it doesn’t matter if you have 2,000 Twitter followers if the content you give them doesn’t resonate.

© 2010 International Legal Technology Association  

About the Author:

Kristyn is Marketing Technology Specialist at Chicago-based Much Shelist. She is responsible for the firm’s CRM database (InterAction), electronic marketing campaigns (from basic HTML design through distribution and analytics) and social media strategy. She also has various duties related to the firm’s Web site, including search engine optimization and Web analytics interpretation. Kristyn was recognized by the International Legal Technology Association (ILTA) with a 2010 Distinguished Peer Award for outstanding achievements in marketing technology at the organization’s annual conference. She has nearly five years of marketing technology experience in a law firm environment.

www.muchshelist.com / 312-521-2125

 

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