Article 990 defines personality rights as “the rights of life, body, health, name, portrait, reputation, honor, privacy and other rights enjoyed by civil subjects.” However, these rights cannot be waived, transferred or inherited per Article 992. Even though there is no inheritance, a spouse, children and parents can enforce the deceased rights per Article 994. This codifies existing law from the Supreme People’s Court case Zhou Haiying v. Shaoxing Yuewang Jewellery and Gold Co., Ltd., which held a close relative was entitled to sue for a violation of Lu Xun’s portrait right after his death.
Article 995 confirms that plaintiffs are entitled to compensation and injunctions for the violation of personality rights. Article 996 adds that the compensation may include damages for mental anguish. Article 997 adds preliminary injunctions are available when when “a civil subject has evidence to prove that the perpetrator is or is about to commit an illegal act that infringes on his personality rights, and if he fails to stop it in time, his legal rights and interests will be irreparably damaged.”
Article 1018 defines the right of portrait as “…image that can be recognized by a specific natural person reflected on a certain medium through video, sculpture, painting, etc.” and gives natural persons “…the right to make, use, disclose or permit others to use their own portraits in accordance with the law.”
Article 1019 expands on Article 995 by stating “it is forbidden to make, use or publish portraits of portrait right holders without the consent of the portrait right holders, except as otherwise provided by law.” However, exceptions are provided in Article 1020 including personal use, art appreciation, education or scientific research, news, government use with the required scope of their duties, images of public environments where it is inevitable that people will be present, and public interest.
Articles 1021 and 1022 cover portrait right contracts and are favorable to the portrait right owner. Per Article 1021, if there is a dispute in the meaning of a term, the explanation should favor the portrait right owner. Article 1022 covers term of the contracts. If no term is specified, either party may cancel at any time but provide reasonable notice. If a term is specified, the portrait right owner can cancel the contract before the end of term as long as reasonable notice is provided.
Article 1023 states the right to name and voice are also covered similarly by this section IV of Personality Rights with respect to portraits.
When a celebrity does a good deed or a sports figure achieves a major accomplishment, companies may feel like sending a public “shout out” to that individual – whether it be through a tweet, a Facebook post, or some other media. However, companies need to be very careful that such a reference to the public figure does not suggest any type of endorsement of or association with its products or services, which could constitute a right of publicity violation. The right of publicity is generally understood to be the right of a person to control the commercial exploitation of his or her identity, and prevent commercial appropriation of his or her identity by others without permission. Generally, a right of publicity violation consists of unauthorized use of a protected aspect of identity (i.e. name, image, likeness) for commercial purposes, such as use on commercial products and in commercial advertising.
Last year we mentioned basketball legend Michael Jordan’s right of publicity lawsuit against Jewel Food Stores. In 2009, Jewel Food Stores ran an advertisement in Sports Illustrated magazine containing congratulatory text about Jordon’s induction in the Basketball Hall of Fame along with a photo of Jordan’s namesake basketball shoes. However, the advertisement also featured Jewel’s trademarks: its red and white logo and the slogan “Good Things Are Just Around the Corner.” The ad copy played on the slogan to refer to Jordan as a “fellow Chicagoan who was ‘just around the corner’ for so many years.”
In response, Jordan filed suit against Jewel for right of publicity violation, false endorsement under the Lanham Act, and unfair competition, seeking $5 million in damages. Jewel argued that the notice was non-commercial speech and should be protected by the First Amendment, and the district court agreed. However, the Court of Appeals held that although the advertisement had a celebratory theme, there was an unmistakable commercial function also. Even though it did not purport to sell any specific product, it served to enhance the store’s brand in the minds of consumers. Specifically, the court noted it was
image advertising, aimed at promoting goodwill for the Jewel-Osco brand by exploiting public affection for Jordan at an auspicious moment in his career.
There has been some activity by the court since our last post and the suit’s remand. In response to Jewel filing third-party claims against Time Inc. (publisher of Sports Illustrated) for contribution and indemnification, the district court ruled that Time could not be held liable, as state law would prevent Jewel from imposing contribution liability on Time. Additionally, the court has denied Jordan’s request for summary judgment on his claim under the Illinois Right of Publicity Act, stating that the appellate court’s conclusions about the function of the ad under the First Amendment did not answer the question as to whether Jordan’s identity was used for a commercial purpose under state law. Finally, just last week the court ruled that Jordan has a statutory right to sue Jewel, in response to Jewel’s assertion that Jordan had transferred his publicity rights to his loan-out company, rendering him the improper plaintiff.
A jury trial for this case is set for December 8.
Companies who may be considering using a celebrity’s name or likeness in any contextwithout permission should think again, especially in light of lawsuits like this one.
There’s a saying that goes “any publicity is good publicity,” and while I’m not so sure about that, I do know that positive publicity can do wonders for your law firm. But do you know what’s even better than positive publicity? FREE positive publicity. That’s right, you can get great publicity that won’t cost you a single penny and I’m going to tell you how:
Contact your local TV news station. Email, fax, or call your local news station and introduce yourself. Tell them who you are and what you do, and don’t forget to mention what you specialize in. Tell them that you are available if they ever need an expert to speak on a legal topic, especially in your niche. Do this once a month until they contact you to be interviewed. If you do a good job, they’ll keep coming back to you and your face will continue to be broadcast on local television for free.
Notify different mediums of the media. Once you’ve been interviewed on TV, let your local radio stations and newspapers know. They will see you as a leading expert in your field and they will follow you and want to ask you to interview with them. This way, you can recycle interviews and information without being redundant.
Clip and recycle. Once you have been interviewed on TV a few times, you’ll want to compile all of your interviews into one video that you can share online and use on you website to show potential clients that you are the leading expert in your field. With an easy editing software, you can clip the highlights of all your interviews and recycle them into one powerful, credibility-building video.
Testimonials. If you host an event or seminar, bring a cameraman along with you. After the event, have your cameraman politely ask attendees if he can interview them about their experience. If you’re a great lawyer, then I’ll bet you can host a great event, so you know that everyone who agrees to do an interview will do nothing but rave about you and the knowledge you possess. Take these testimonials and upload them to YouTube, your website, and social media so everyone can see how awesome you are.
Be educational. The best way to show that you are a credible expert in your field is to prove it rather than just advertise it. In order to prove this, you need to be the source of information for all questions and topics in your field of law. So, you should blog, write articles, make videos, and even publish books on your wealth of information that you have about your practice area(s). When you hand someone a book that you authored instead of a flimsy advertisement with your face on it, you are creating great publicity and credibility for yourself and your firm.
The Business of Law Blog Spot at the National Law Review recently featured Amy Juers of Edge Legal Marketing who shared a great top ten list of Social Networking Best Practices and a great video on businesses implementing social media strategies:
When should your team get involved in social networking marketing tactics, and which sites offer the most appropriate venue to shorten the sales cycle? Many marketing departments are still holding back on this initiative for good reason, it is practically impossible to manage what you do not understand.
Determining the right time to jump in is not as important as investigating the sites to determine if your involvement would complement your legal technology marketing or legal services marketing, sales, client communication, or any host of business initiatives. Simply jumping in for the sake of getting your feet wet is not a strategic social networking tactic. You should do research to gain an understanding of your options, match options with organizational goals, and then consider launching initiatives through multiple outlets. If you do not have time to research this or determine if or how to weave social networking into your organization, call experts in legal marketing and PR services and ask them for social networking strategy advice.
Whether or not sites that are popular today will evolve and remain popular next year cannot be predicted, however, given every teenager knows of this technology and actively uses it, your customers and prospects of the future are developing social networking finesse and will expect to connect with you in a few years in these ways. If the popular “must have” social networking sites of today fade into the abyss, rest assured, new “must have” networking outlets will emerge to satisfy social networking needs in business. Think of today’s big buzz social networking websites like a wave that has water in it that you can choose to ride or let pass. If you miss this one, certainly there will be another. Because no one knows how long this wave will be upon us, rather than simply waiting for this to pass, there are plenty of good reasons to investigate and consider getting involved today.
Why use Social Networking for Legal Marketing and PR
Connections through social networking sites allow groups to quickly catch up on each other’s business, while also allowing for the free-flow of information. People are increasingly becoming more excited about checking their social networking page rather than checking email for good reason, spam has a difficult time finding its way into your “friend” list and the platform for interaction is growing increasingly dynamic.
How extensively you get involved with social networking initiatives depends upon how these initiatives align with your firm’s goals. Your firm may want to leverage a site like Facebook to create a client group, post news, share client success stories or post YouTube videos of client testimonials and demos. LinkedIn has recently added greater flexibility into their site as well. For any firm sending out electronic newsletters, or client communications, creating a chat group or client networking group on these sites provides another outlet for sharing important content that may otherwise get buried if it were delivered as an email message.
Top 10 Social Networking Best Practices
Conduct your own investigation. Before you determine whether or not to invest resources or any energy into creating a business profile and joining a site, investigate the leading sites and kick the tires! Social networking sites require zero “real cash” outlay, costing only the investment of research time.
Select social networking opportunities that support business goals. Test the waters before you dive in, ask your prospects, clients and employees which social networking site they prefer. Not every site is going to be a fit and align with your firm goals.
Get the word out – and if needed – educate your clients! Connect to your prospects, clients and who’s who in your channel. Introducing a “chat” group on Facebook for clients makes little sense if your clients have no understanding of how to create a profile or get connected.
Structure or limit the time invested in managing a social networking site.Whether responding to posts, making connections with people, or adding content to your profile, make regular updates once or twice weekly. Calendar for 15-minutes one time per week to maintain each site.
Avoid getting personal. Publish content relevant to your expertise to establish thought-leadership status. No one really wants to know if you just finished a cup of coffee or if your dog has fleas.
Don’t over-stimulate with too much content. Keep postings brief and informational.
Resist begging. Create a consistently informational space and followers will line up to “friend” you.
Avoid posting on what may be sensitive topics. Events will unfold in the industry or within a competitors business that may be highly tempting to post about. The safest approach is to stay neutral, be informative and remain professional.
Measure your activity. You cannot analyze what you cannot measure. Track your tweets, followers, time spent, and conversions.
Keep current on social networking trends.Subscribe to a social networking blog or legal industry RSS feed to receive legal industry social networking, marketing and PR updates daily or weekly.
Recommended Social Media Resource Webcast
Watch this YouTube webcast video, The Business Value Behind Social Media featuring social media experts Charlene Li, David Meerman Scott and Chris Brogan as they weigh in on social media and discuss the latest strategies and opportunities that executives face when considering the implementation of social media initiatives. This webcast was recorded at the Premier Business Leadership Series in Las Vegas in November 2010. Please note, although informative this video is approximately an hour long.
You’ve probably heard this “fact”: if Facebook was a country, it would be the fourth largest country in the world! Web 2.0 has infiltrated every aspect of our lives, including the workplace. As a result, most lawsuits in which employers become mired are fraught with electronic data issues. To guard against a wide range of legal claims, as well as reap the benefits of a global marketplace, many employers are instituting social networking policies. But, as with any policy, a social networking policy must be carefully drafted to meet your business needs. With that, I introduce to you the 10 Commandments of drafting a social networking policy:
NUMBER ONE: Thou shalt NOT use a sample policy pulled willy-nilly from the Internet.
While your search results will pull up dozens of fine looking policies, you won’t know who wrote them, the legal jurisdiction from which they hale, or the business interests the policy seeks to promote. Many times, a bad policy is worse than no policy at all.
NUMBER TWO: Thou SHALT work in harmony to craft a policy appropriate for your business.
If you decide that a social networking policy is appropriate for your business (and it may not be), the combined cooperation of your IT department, human resources, legal, and company decision-makers is necessary to formulate an effective policy.
NUMBER THREE: Thou SHALT know the risks and guard against them.
Employee use of social networking media can have wide-ranging legal ramifications for employers. Possible claims include: harassment, discrimination, defamation, invasion of privacy, and a variety of statutory violations.
NUMBER FOUR: Thou SHALT proclaim that the eye of the employer sees all.
Notify employees that they have no expectation of privacy in their use of company technology, that their activities should be work related only, and that their communications may be accessed at any time.
NUMBER FIVE: Thou shalt NOT take the name of the employer in vain.
The policy should require disclaimers be used indicating that the opinions stated therein are those of the employee and not the employer.
NUMBER SIX: Thou SHALT respect thy co-workers, customers, competitors, and employer.
Require employees to act respectfully in their social networking/blogging activities. Provide guidance on what is and what is not appropriate behavior.
NUMBER SEVEN: Thou shalt NOT steal or do other really bad things with your employer’s computer.
The policy should prohibit disclosure of confidential information, the use of legally-protected/copyrighted information, and the dissemination of personal information of co-workers.
NUMBER EIGHT: Thou SHALT know the consequences of thy actions.
Inform your employees that their social networking activities on the job are subject to all company policies and explain the consequences of violating your social networking policy.
NUMBER NINE: Thou SHALT spread the word throughout the masses.
Distribute the policy. Have your employees sign off on their receipt and understanding of the policy. Provide training on the policy.
NUMBER TEN: Thou shalt NOT commit random acts of destruction.
You MUST ensure that your litigation hold policy incorporates procedures and methodologies to capture and preserve social networking data in the event of litigation.
Vanessa Goddard’s primary focus is in the area of labor and employment law. She has been involved in representing clients in various employment cases, including sexual harassment, deliberate intent, age, race, and disability discrimination, wrongful discharge, and various other employment-related torts. She is admitted to various state and federal courts as well as the Third Circuit Court of Appeals and Fourth Circuit Court of Appeals. 304-598-8158 /www.steptoe-johnson.com
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.
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.
As included in the Business of Law Section of the National Law Review Tom Ciesielka of TC Public Relations provides some solid Do’s & Don’ts for Twitter:
With millions of unique visitors each month, Twitter is still at the top of the social media game. Some people still use Twitter to catalog boring details of the day. However, savvy and smart users realize Twitter’s usefulness as a concise way of marketing and reaching out to consumers and media. Read the following do’s & don’ts to continue being one of the savvy and smart users.
Do make quality friends. Capturing an audience on Twitter is important, but don’t start following 857 people in one day. Start with a few friends, some movers and shakers of your industry, some legal reporters—listen to their tweets, and offer relevant replies. Then continue to follow a few new people week by week. Don’t just follow to follow, but actually think about why you want to connect with a certain person – think “strategic following.” Then contribute meaningful posts each day that others might find interesting as a way to build your own following.
Do protect your reputation. Twitter can be used to solidify your brand image, and it is an indispensable medium when crisis hits. Maintaining a Twitter account can help your firm when a damaging story hits cyberspace because a response on Twitter is often the fastest way to acknowledge the problem or issue. Failing to address any breaking news that involves your company makes you look at best, incompetent and at worst, guilty. Confidentiality laws may render tweeting a bad idea, but you should always pay attention to what’s happening and be prepared to do damage control when necessary.
Do be efficient. Building relationships on Twitter can facilitate communication about your legal specialties and expertise. However, using Twitter effectively and appropriately can be a time-consuming job, so try and implement applications that will help you be more efficient like TwitterFeed, TweetDeck and ÜberTwitter. It is also more efficient to partake in niche topic conversations about your practice areas instead of tweeting about the world of law in general. Specificity trumps generality.
Don’t be boring or narcissistic. Stick to tweeting about pertinent topics and find ways to express your personality through the links you post, rather than tweeting about how many briefs you’ve written that day or what color tie you’re wearing. Share links to legal headlines or comment on stories related to your expertise. Participate in discussion, reply to other users’ tweets, re-tweet their tweets—Twitter is not a one-person game, so don’t try to be the center of the universe.
Don’t turn off your censor. In cyberspace, a record of your most inappropriate tweet will live on in infamy long after you’ve cooled down. Never forget that what you say on Twitter can come back to haunt you, so rude or tasteless comments can come back to haunt you. Play it cool and don’t tweet anything you wouldn’t say in public; after all, Twitter is incredibly public.
This posting is republished with permission from the Chicago Lawyer Magazine Blog “Around the Watercooler” located at: http://h20cooler.wordpress.com/2010/
About the Author:
Tom Ciesielka, President of TC Public Relations, has worked in public relations, marketing and business development for more than 25 years and has enjoyed working with clients ranging from law firms to distinguished authors to national and local companies. He feels privileged to have established trusting working relationships with these clients and values every opportunity he gets to help businesses grow. He is also a former board member of the Legal Marketing Association in Chicago and has spoken at Chicago Bar Associations CLE programs. 312-422-1333 / www.tcpr.net
National Law Review Business of Law contributor Tom Ciesielka of TC Public Relations highlights a legal publicists role in law firm relations with the media.
Everybody hit your buzzers it's the Match Game - (Marcia Wallace with the correct answer)
I sometimes like to promote myself as an expert matchmaker. You want a date with the media? You got it. You want to get to know a certain reporter better? No problem. But PR matchmaking isn’t about dates and getting-to-know-yous, it’s about interviews and background meetings and making valuable connections with key reporters that care about your firm’s story. Consider the following tips to foster strong relationships and woo the media.
Pitch the Right Story to the Right Person at the Right Time
Would you show up to a date late, and then call your date the wrong name? Of course not, so don’t call a morning radio host who talks politics and ask about real estate law. Understand that there are many different titles in the media – reporter, producer, managing editor, columnist, executive producer, staff writer — so going straight to the host or editor in chief may not give you the best response. If you’re contacting a reporter, look for the specific beats and topic specialties to help you connect with someone who is already interested in your industry. Find the right time to contact a media outlet by first understanding its deadlines, and also by looking at editorial calendars and reading its most recent articles or program recaps to see what subjects have been recently covered. Every date is different, and likewise, pitching the media isn’t a one-size-fits-all game.
Don’t Exaggerate the Truth
Don’t tell your date you found the cure to cancer when you really just donate money to the American Cancer Society. Similarly, don’t claim to be an expert on lowering litigation costs if you charge $1,000 an hour. Talking about how wonderful your firm is gets you nowhere fast in the business world, and also can give you and your firm a bad reputation. Instead of using an exaggerated story to puff up your story, use tidbits from the real story in a captivating way. Deliver your message clearly, focusing on the parts your audience cares most about, without going overboard. Also remember, reporters do their research, so you want to make sure you have all your facts straight.
Keep the Relationship Strong
When a date goes well, what do you do? Call and ask for another. If a story about you or your firm goes well, thank the reporter, and keep him or her on your “Hot Contacts” list. When you have additional information that would interest the same reporter, don’t just sit on it, hoping that the reporter calls you and asks what’s new. Think of it this way: every relationship needs cultivating. Cultivate your status as a credible source by sending reporters information or ideas to help with their stories, or see what they are working on and if you can help. Once you’ve established that relationship, you need to keep it going and keep it strong.
This posting is republished with permission from the Chicago Lawyer Magazine Blog “Around the Watercooler” located at: http://h20cooler.wordpress.com/2010/
Tom Ciesielka, President of TC Public Relations, has worked in public relations, marketing and business development for more than 25 years and has enjoyed working with clients ranging from law firms to distinguished authors to national and local companies. He feels privileged to have established trusting working relationships with these clients and values every opportunity he gets to help businesses grow. He is also a former board member of the Legal Marketing Association in Chicago and has spoken at Chicago Bar Associations CLE programs.
Alert the Media! The National Law Review is offering law students the opportunity to publish their work in the months of October & November. No entry fee is required.
Entries will be judged and the top two articles chosen will be featured in the NLR monthly magazine prominently displayed on the NLR home page. Up to 5 runner-up entries will also be posted in the NLR searchable database each month.
Each winning article will be displayed accompanied by the student’s photo, biography, contact information, law school logo, and any copyright disclosure.
All winning articles will remain in the NLR database for two years (subject to earlier removal upon request of the law school).
Students have the opportunity to publicly display their legal knowledge and skills.
The student’s photo, biography, and contact information will be posted with each article, allowing for professional recognition and exposure.
Winning articles are published alongside those written by respected attorneys from Am Law 200 and other prominent firms as well as from other respected professional associations.
Now more than ever, business development skills are expected from law firm associates earlier in their careers. NLR wants to give law students valuable experience generating consumer-friendly legal content of the sort which is included for publication in law firm client newsletters,law firm blogs, bar association journals and trade association publications.
Student postings will remain in the NLR online database for up to two years, easily accessed by potential employers.
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.
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
