GCs Come Up Against Social Networking Sites, Like It or Not
The following article appeared in the June issue of GC Mid-Atlantic.
By Micah U. Buchdahl
What are you doing? In 140 characters or less: "I am writing an article on the impact of social networking sites, such as Twitter and Facebook, on in-house counsel for GC Mid-Atlantic."
That "tweet" uses just short of the maximum 140 characters (136 to be exact) for a Twitter post. It avoids TMI ("too much information" for the non-texting crowd). And knowing what it is and how it works is imperative.
Recently, the chair of a law firm's professional responsibility committee ordered me to "go print out LinkedIn." Besides being short of time, paper and toner, he showed his hand. He had no idea what LinkedIn is or how it works. Yet, he wanted to create firm policy regarding its usage.
As the protector and advocate of a company, you simply cannot afford to be naïve. The continuing advent of social networking creates both issues and possibilities for in-house counsel.
The Need to Know
As someone who speaks and advises law firms on ethics issues related to online efforts, including lots of focus on social networking in the last year, I did not want this column to be about ethics. As lawyers, we all know the hot-button issues. Unlike attorneys at law firms, where there is a business development or advertising goal (be it direct or underlying), the in-house audience is not soliciting.
Whether you are "poking" a friend on Facebook or "tweeting" on Twitter, the social networking phenomenon is everywhere -- including the offices of top executives at some of the world's largest corporations. For in-house counsel responsible for protecting a company in areas ranging from intellectual property to employment law, from advertising regulation to communications, the need to have a working knowledge of these online entities is critical.
The "need to know," however, expands well beyond the responsibilities of protecting your company. Some in-house counsel have utilized these networks in the selection and vetting of outside counsel. In some cases, it is simply reading what is out there in regard to a specific attorney or firm. However, others have proactively used the tools to find counsel. This might involve simply checking your own social network for people that practice in an area or jurisdiction where you require assistance.
On Twitter or Facebook, for example, you might search your network or the vast entity itself for a "Tennessee immigration law firm." You might contact someone based on the expertise they show through their online portfolio, or perhaps "bingo," there is an old law school classmate that you can reach out to. On LinkedIn, you may do the same type of searches, but can also check your network to see if you have any direct or indirect connections to the expertise you require.
Drawing the Line
"I use LinkedIn for my business-related social networking. I use Facebook for my non-business social networking. I use Twitter for news-feed types of updates, for the most part, and I also read tweets from my friends," said Todd A. Borow, senior corporate counsel at Johnson Matthey and current president of DELVACCA. "I would not be interested in receiving business-related tweets on Twitter. I occasionally get requests on Facebook from business contacts, but I do not approve [them]. I instead direct my contacts to request me as a connection on LinkedIn."
While the Facebooks and Twitters of the world are largely built around a more informal, casual online relationship, LinkedIn is in many ways the opposite. It is built around your business and professional world. Both entities work. Consider it the difference between hiring someone you clicked with at a cocktail party versus making a selection based on reading an article or attending a CLE program.
As is the case with almost any area of business today, there are plenty of similar online networking tools geared toward your specific industry. It might be pharmaceuticals, automobiles or physicians. In the case of those focusing on the "legal" industry, sites such as Martindale-Hubbell Connected and Legal OnRamp are considered networking tools specific to lawyers and targeting in-house counsel.
For Martindale, the Connected network is an appropriate extension of its age-old directory. In the pre-Internet world, few would dispute that Martindale was the key resource for in-house counsel "looking up" attorneys based on practice and geography. However, that tool has lost its significance in this generation. This is a wise effort by Lexis-Nexis to rebuild the brand for today's market.
On the flip side, Legal OnRamp is a product of the Web world -- designed to provide a community for lawyers to interact and, in some cases, seek counsel, business and employment opportunities.
"I do note that many companies, like mine, block Web sites that are considered to be social networking sites and not business networking sites," said Borow. "At my own company, Facebook and MySpace are blocked, which further emphasizes my point that these, as well as Twitter, are not the appropriate Web sites for lawyers to use for their marketing efforts," he continued.
For that reason, Borow maintains that the legal-specific networking sites are more effective if the goal is to market legal services to his audience.
Yet these sites are coming into play every day on the practice side of things. These create potential issues for attorneys, their employers and their businesses.
Lawyers are struggling with issues of monitoring site usage and dictating company policy. While Borow mentions some sites being blocked in the workplace, these same sites are often heavily used for marketing and recruiting in some places. All of the content is discoverable and can and will be used against you in a court of law.
In June, nearly every in-house counsel and intellectual property lawyer had to stay on top of potential trademark issues dealing with Facebook domain names. The power of Facebook and the potential dilution or missue of corporate trademarks necessitated registration action. Failure to understand the site and the impact would be a serious misstep.
Your company's marketers are likely crafting sophisticated social media programs that have complicated strategic objectives and metrics. They are used to provide value, and they involve two-way interaction between the audience and the company or product. While the Internet itself has created numerous difficulties in maintaining control over your intellectual property, a key element to remember is that in the world of social networking, you simply do not maintain control over your message.
It is not just the marketers -- your communications department is involved in moving traditional PR efforts to these networks. Internally, your company may be using a Facebook page as a communications tool as well.
Remember that all of these networks have terms of service guidelines (which may change with little notice). There are numerous social media monitoring tools to stay aware of the conversations that might be affecting your brand. Make sure the company messages are consistent from one social site to the next.
Besides company usage policies, you need to address certain considerations when communicating through these sites with clients, need to identify possible issues including confidentiality, communications with counsel and the need to be truthful and accurate with statements.
Another important area affecting your job is in monitoring the company's use of such tools for recruiting and hiring. It is yet another area that requires rules and policies.
"Savvy employers will make use of these networking tools," said Margaret M. DiBianca, an associate in the employment law group at Young Conaway Stargatt & Taylor in Wilmington, Del., and editor of the Delaware Employment Law Blog.
"Employers should proceed with caution when looking for potential job applicants. Anyone can create content and post it online, which means you could hire someone based on false information. And if you decide not to hire the applicant, the information you found on the Internet could be used against your organization to support a discrimination claim."
DiBianca also warns that there are limits to how far you can go in keeping tabs of an employee's blogs, instant messages and social networking sites.
There is no end in sight to the impact of the Twitters and Facebooks on the profession. Recently, a judge in North Carolina was reprimanded for "friending" a lawyer that was involved in a case before him. Issues involving twittering jurors (in the middle of a trial) have led to numerous cases heading for appeal. Last April, as Pennsylvania Sen. Vincent Fumo's trial finally headed to a verdict, a juror's Facebook musings were enough to have Fumo's legal team seek a new trial.
It is no longer about whether you want to try this stuff out; you had better know how to tweet. •
Micah U. Buchdahl, a former in-house counsel, is president of HTMLawyers Inc., a law marketing consultancy based in Moorestown, N.J. He is chair-elect of the American Bar Association's law practice management section. Buchdahl can be reached by e-mail at email@example.com or by phone at 856-234-4334.