The Top Ten “Do’s” of a Law Firm Social Media Policy

Marisa A. Trasatti and Jhanelle A. Graham

By now, we know that social media is not a mere flash in the pan. Rather, online networking is here to stay, and lawyers must develop competency in “the benefits and risks associated with relevant technology,” according to Rule 1.1 of the American Bar Association (ABA) Model Rules of Professional Conduct. Social media applications encompass a variety of online activity, all of which are traceable and leave virtual footprints. Lawyers, staff and occasional employees or contractors of a firm often participate in social media or social networking technologies, whether for purely personal or business-related reasons. These technologies include, but are not limited to, blogs; social networking sites such as Facebook and Google+; visual sharing sites like Pinterest, Instagram, and Youtube; professional networks, including LinkedIn and AVVO; and micro-blogs such as Twitter.

Although social media can serve as a useful marketing tool and investigation-gathering source, it is not used exclusively for business endeavors. Improper use may have consequences that include, among other issues, negative publicity, regulatory attention and confidentiality or copyright concerns. Additionally, misuse of social media may lead to unintended attorney/client relationships, conflicts with the professional rules of ethics, disclosure of trade secrets or other confidential information, and individual tort liability for negligence or defamation. For these reasons, every law firm should attempt to provide reasonable guidelines for online behavior to employees who participate in online networks. As new tools on the Web are introduced and new challenges emerge, the evolution of a law firm’s social media policy becomes increasingly important. Below is a top ten (10) list of “do’s” for creating an effective law firm social media policy:

Top Ten Inclusions in a Law Firm Social Media Policy:

1. Compliance with Law. Always ensure compliance with the law, as well as the Maryland Lawyers’ Rules of Professional Conduct and the American Bar Association’s Model Rules of Professional Conduct. Employees should never post any information or conduct any online activity that may violate applicable local, state, or federal rules or regulations.

2. Transparency. Where social media users are identified as employees, or where they comment on matters associated with the firm, they should be aware that they are expressing their opinions and not the opinion of the firm.¹ Example: “The views expressed on this site represent the author’s alone and do not represent the views of the Firm.” Employees should write or speak in the first person to help identify that they speak for themselves and not the firm. Further, creating or using a fictitious screen name to infiltrate an opposing party’s networking site should be forbidden.² Employees should refrain from creating anonymous or pseudonym online profiles in order to pad statistics on page views or links.

3. Confidentiality. An effective law firm social media policy should discourage communications about the firm’s sensitive and confidential information, such as the firm’s fees, awards, recent cases, or case outcomes, unless specifically authorized by firm management. Also, employees should not disclose or distribute the firm’s internal communications and proprietary information³ to non-employees of the firm. Employees should never use a client’s name in a social post unless they have written permission to do so.

4. Language. Discourage use of social media to post or display comments about coworkers, supervisors or the firm that are vulgar, obscene, threatening, intimidating, harassing, or a violation of the firm’s workplace policies against discrimination, harassment, or hostility on account of age, race, religion, sex, ethnicity, nationality, disability, or other protected class, status, or characteristic.⁴ Rather, employees who use social media sites should ensure that the tone of their comments is respectful and informative. In a similar vein, if a negative post or comment is found online about the firm or the employee, he/she should not counter with another negative post. Instead, employees should consult the firm’s management about handling these types of situations. It is important that employees understand and credit the other person’s point of view and avoid any communications that could result in personal, professional or credibility attacks.

5. Self-Promotion. Encourage firm employees to accurately state their positions, practices, professional qualifications, or professional accomplishments on personal websites, online networking sites, or social networking sites, beyond that described on the firm website.⁵ Employees should never be false or misleading in their online credentials. Attorneys and other professional staff members must maintain complete accuracy in all of their online biographies and ensure that there is no misleading embellishment. For example, a lawyer’s biography that states “Harvard-trained” after the attorney attends a weekend CLE course at Harvard is inaccurate and noncompliant with the Model Rules of Professional Conduct.⁶

6. Copyright. Enforce compliance with copyright laws. Any use of copyrighted or borrowed material by employees on social media sites should be identified with citations and links. When publishing any material online that includes another’s direct or paraphrased quotes, thoughts, ideas, photos or videos, the online user should always give credit to the original material or author, where applicable.

7. Error. Acknowledge that mistakes may be made in an online forum, and encourage employees to correct them immediately. Since transparency is key, employees should simply admit the mistake, apologize if necessary, make the correction, and move on.

8. Respect. Discourage derogatory comments, blogs, Tweets, etc., about other law firms. All attorneys should practice respect for clients, competitors, lawyers and staff, vendors and other business partners in any posting on social media sites.

9. Attorney-Client Formation. Discourage the appearance of attorney-client relationships through online legal advice, whether on blogs or via other electronic channels.

10. Solicitation / Recommendations. Discourage the use of a chat room or other asynchronous form of mailing such as LinkedIn or Facebook to solicit clients.⁷ Similarly, employees must be wary of the many ways in which recommendations and testimonials may violate ethics rules. Recommending colleagues is a tool of professional social networking sites, but employees should be reminded that the recommendations and comments they post about current and former attorneys of their firm can have consequences, even if the recommendations are not on behalf of the firm.

The key to drafting an effective law firm social media policy is to ensure that it is neither overbroad nor severely restricted, and continues to evolve as the legal landscape of social media changes. Law firms must respect the privacy and autonomy of their employees while also maintaining a sense of professionalism in online networking. In summary, law firm social media policies should encourage employees to abide by the following three (3) principles: Disclose — an employee’s presence in social media must be transparent; Protect — take extra care to protect the firm, its clients, and the employee; and Use Common Sense — remember that professional, straightforward, and appropriate communication is always best. When in doubt, leave it out!

Marisa A. Trasatti is a partner at Semmes, Bowen & Semmes in Baltimore, Maryland. Her practice focuses primarily on civil litigation, with an emphasis on products liability litigation.

Jhanelle Graham is an associate at Semmes, Bowen & Semmes.

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¹See MODEL RULES OF PROF’L CONDUCT R.4.1 (prohibiting false statements) and R.5.7 (responsibilities regarding law-related services); MD. LAWYERS’ RULES OF PROF’L CONDUCT 4.1 and R.5.7 (same).
²See MODEL RULES OF PROF’L CONDUCT R.4.1 (truthfulness in statements to others) and R.1.18 (prospective clients); MD. LAWYERS’ RULES OF PROF’L CONDUCT R.4.1(truthfulness in statements to others).
³The National Labor Relations Board has stated that an employer prohibiting disclosure of confidential and proprietary information should be ready to narrowly define “confidential” and “proprietary”. The Court of Appeals of Maryland has held that “proprietary information” includes trade secrets, which may consist of any compilation of information which is used in a business, and which gives that business an opportunity to obtain advantage over competitors. This may be a list of customers, for example. Space Aero Products Co. v. R. E. Darling Co., 238 Md. 93 (1965).
⁴See MODEL RULES OF PROF’L CONDUCT R.8.4 (misconduct) and R.4.4 (respect for rights of third persons); MD. LAWYERS’ RULES OF PROF’L CONDUCT R.8.4 and R.4.4 (same); see also NLRB, Memorandum OM 12–31 (January 24, 2012).
⁵Id.; see also MODEL RULES OF PROF’L CONDUCT R.1.18 (duties to prospective clients); MD. LAWYERS’ RULES OF PROF’L CONDUCT R.1.18 (same).
⁶See MODEL RULES OF PROF’L CONDUCT R. 4.1 (truthfulness in statements to others); MD. LAWYERS’ RULES OF PROF’L CONDUCT R.4.1 (same).
⁷See MODEL RULES OF PROF’L CONDUCT R.4.3 (dealing with unrepresented persons) and R.7.3 (solicitation of clients); MD. LAWYERS’ RULES OF PROF’L CONDUCT R.4.3(dealing with unrepresented persons) and R.7.3 (direct contact with prospective clients).

ADDITIONAL SOURCES

See also NATIONAL LABOR RELATIONS BOARD, MEMORANDUM 12-31, REPORT OF THE GENERAL COUNSEL (Jan. 24, 2012); Echostar Technologies, LLC, Case No. 27-CA-066726 (N.L.R.B. Div. of Judges, Sept. 20 2012) (finding that the social media policy provision at issue could be reasonably interpreted to interfere with the right of union and non-union employees to engage in protected concerted activity under Section 7); COSTCO Wholesale Corporation and United Food and Commercial Workers Union, Local 371, 358 NLRB 1, 2012 WL 3903806 (Sept. 7, 2012) (same); Knauz BMW and Robert Becker, 358 NLRB No. 164, 2012 WL 4482841 (Sept. 28, 2012)(upholding the discharge of an employee for “his unprotected Facebook postings about an auto accident” at an adjacent dealership, which did not relate to his own terms and conditions of employment); USER NAME AND PASSWORD PRIVACY PROTECTION AND EXCLUSIONS ACT, SB 433 (eff. Oct. 1, 2012) (forbidding Maryland employers from: (1) requesting or requiring that an employee or an applicant for employment, provide access to personal social media accounts; and (2) discharging, disciplining, penalizing or threatening an employee for refusing to disclose such information); Jennifer S. Lubinski, A Real Danger of Speech in the Social Media Era: Employment Termination, Md. Bar. J. (November 2013).