Blogging, Friending and Tweeting: what lawyers should and should not do

As Twitter reaches its fifth birthday, lawyers and ediscovery providers alike seem suddenly to be discovering its value as a tool for engaging with others. At a New York panel, I talked about some general benefits and pitfalls of blogging and tweeting, whilst the other panel members looked at issues specific to lawyers.

I am back from New York, where my primary purpose was to speak on a CLE panel at the invitation of the New York City Bar Association. The panel, called Blogging, Friending and Tweeting: what attorneys should and should not do, was moderated by Denise Backhouse of Morgan Lewis, and the other speakers were Jeremy Feinberg, Statewide Special Counsel for Ethics in New York’s Office of Court Administration, Ronald Minkoff of Frankfurt Kurnit Klein & Selz, PC, and Ronni Solomon of King & Spalding. Denise and I last did a panel together on data protection and privacy in Munich in December, and I came across Ronni in Singapore last year, talking about sanctions. I mention this to emphasise that none of us are “social media consultants” – we all do other things, and our talks were about our experiences and observations from real life. There was not a mention of Klout or PeerIndex or any of those arbitrary measures of “success” in social media.

All I care about is whether those who are interested in my subject can find me, will come back, and will tell their friends. That is not a bad starting point for lawyers, but they have overlays of ethics and professional conduct which complicate that simple starting proposition. They also have other factors – set ways, marketing departments and a culture carefully honed for earlier times – with which some compromise may be necessary.

I opened the session by explaining that most of my work involved the collection and dissemination of information about ediscovery / edisclosure. For me, therefore, blogging and tweeting is my occupation, not merely something ancillary to my occupation.  I am not accountable to anybody for what I say, but I nevertheless have some self-imposed rules: there is no point in being anodyne – a certain spikiness is needed; don’t assume that people will read every line but write as if they might; if you seek to be authoritative, then it is worth checking the facts and following basic journalistic rules like distinguishing between fact and commentary; there is no point in blogging if you don’t have opinions and passion, and no point if you can’t write.

How much of yourself do you put in what you write? I choose to include a fair amount in both my blog posts and my tweets because I feel that readers are entitled to know where I am coming from and to know what history and what prejudices inform what I write. For a technology provider or a law firm, the imperative is slightly different. Price-bands narrow; there is a finite vocabulary to describe software and legal services, and distinctiveness is hard to achieve. Interesting articles by an identifiable human are one way of standing out.

It is worth asking what the blog or Twitter account is for. I use my web site for the hard factual stuff – case reports, links to statutes, a conference calendar and articles about nuts and bolts stuff; my blog is for commentary, and Twitter is for promoting what I write, engaging with people about it and – don’t forget this one – finding out things from other people and passing them on. Twitter is not just a megaphone for you, nor just a two-way communication device, but (as I put it in the article which served as my text for my talk), “a big virtual bar” in which news, views, links and information can be exchanged in near-conversational style.

The e-Discovery world shows different approaches to using Twitter. Some providers just point back to their own safe web site material or make bland “buy me” suggestions. Some pass on other peoples’ materials, so at least showing and spreading awareness. The most effective write their own articles, tweet links to them and engage with others. There is much to be said for having a corporate tweeting identity for the formal links, but a business really needs a human identity as well. Law firms are no different in this.

A handful of law firms have individuals who blog and tweet with current material, written by people who catch the news as it comes up, make the phone calls, find out what is happening and generally make the weather rather than merely report it. The problem is that those to whom this comes naturally are not necessarily those who would conventionally be the firm’s spokesman. A recent debate (on Twitter, of course) had begun with the view that you would not have such junior people flying the firm’s flag at a cocktail party, so why would you let them publish things in the firm’s name? I suggested that you had the wrong associates if you would not trust them at a party. The debate ended with the sensible question “Why are we applying old rules to a new environment?” My view is that riding the juniors’ interest in new techniques is something which benefits the company or firm as well as the individual – provided that the rules and parameters are clearly defined.

One of my headings was “Trolls and manners”, having recently come across a US lawyer for whom the world clearly divides into those who agree with him and those who are wrong. I had expressed a mild counter-view to something he had said; his reply was breathtakingly rude, and it had taken some effort on my part simply to ignore it and abandon the subject. Would he have said the same if we had been speaking together in a real bar rather than a virtual one?

We see a recurring theme – what are the conventional parallels and do we adopt, adapt or ditch them? We should probably give the young ones scope, to some extent, to fly with new ideas; the etiquette of everyday discourse is worth clinging on to; the basic tenets of old journalism and established marketing principles are important, but one must be flexible as new methods of publication come along. A lot of it comes down to common sense.

Common sense is a necessary but not a sufficient condition for lawyers. The conventional world has a complex set of rules which govern what lawyers may and may not do, set by law, by insurers, and by multiple professional bodies. That is where our next speakers took us. I ended with a stream of suggestions about the use of social media of which the last two were “Don’t aspire to measure it all too closely” and “Imagine that the senior partner, your most critical colleague and a prospective client were going to read what you are about to publish”.

Jeremy Feinberg picked up the theme specific to lawyers. Ethical traps are best illustrated by real-life stories, and Jeremy had a good fund of them. The law firm intern who copied to his entire department an e-mail which he should never have written at all and the judge who friended one of the lawyers appearing before him both stick in the mind, as they should. Just as e-mails and Word files never completely disappear, so web pages of long ago may exist somewhere. That ever-reliable source of anecdote, Paris Hilton, turned up as the former owner of a cell phone number which passed to someone else who began to get voice-mails intended for her; that could be an old client leaving you his closest secrets. It makes sense to keep abreast of changes to e.g. FaceBook’s privacy rules and settings, lest a practice which had been considered safe hitherto was suddenly worth reconsidering. Most of the problems seemed to involve circumstances which had not been considered at all in any meaningful sense.

Ron Minkoff’s focus was on the internal rules and procedures which a firm ought to have. Like other aspects of modern inventions, the problem lies in mapping old rules to new tools. Ron is responsible, with others, for his firm’s social media policy which begins by reciting what may appear to be obvious – that all the firm’s policies governing “real world” or “off-line” activities apply also to social media and other online activities. Be professional and civil, do not infringe IP rights, observe new client intake procedures, look out for business conflicts and abide by attorney advertising and solicitation rules – all these are reminders of constraints which might easily be overlooked in the relatively informal and immediate context of social media. Firms cannot duck all this by internal bans and blanket disclaimers.

Ronni Solomon gave an example of the opposite – a company whose strategy was to make all employees into ambassadors of the company, expecting them to use all channels to promote the business. Her specific focus was on the discovery implications where (as with successive generations of new media) the technology to collect and preserve information lagged behind the ability to create it. The same was true of the law – the US Stored Communications Act preceded the invention of current social media and the case law had not caught up with the means of production. That made it very difficult to give specific advice, whether pre-emptively or once the duty to preserve had been triggered.

Ronni also covered the risk of creating an attorney-client relationship without realising it, and the difficulty of distinguishing between one’s private and one’s professional identities. There is no universal answer to this, but it must be thought through.

We ended with some hypotheticals. Is it ethical to “friend” a non-party witness? Is the answer different if you employ an agent to make the connection? What is the proper course if the opposing lawyer seeks an extension of time for a “family emergency” which you later discover from FaceBook to have been a “wild bachelor party in Las Vegas”? When does acceptable acceptance of a freely-rendered invitation turn into unacceptable deception?

It is hard to do justice in a short post to a session which ran for 3 1/2 hours. My perception is that this area is evolving in weeks rather than months, as both my catchment areas – e-discovery providers and law firms – find themselves riding a wave which is overtaking formal decision-making. There are opportunities to make an impression, opportunities which lie at the hands of both individuals and of their employers, and there is a very real sense that one might be left behind in very competitive markets. There are significant risks as well – perhaps the inevitable concomitant to opportunity. For most commercial organisations, those risks are merely the opposite of the opportunities – your marketing misfires and creates a bad impression rather than a good one. For lawyers, the risk/opportunity balance has the added frisson that you may breach professional rules, both in the conduct of client work (for example in respect of discovery / disclosure) and in all those codes which govern the ways in which lawyers engage with others – clients, prospective clients and opponents.

A clear conflict emerges between the approach which asks “Why are we applying old rules to new media?” and the unshakeable fact that the old rules exist, and exist for a purpose. If I were a law firm, I would do two things today, without prejudice, as it were, to devising a longer-term strategy. Firstly, I would remind everyone in the firm, in general terms, of the narrowness of the borderline between their private and their professional lives, of the professional boundaries, and of the pervasiveness and the permanence of the published record.  Secondly, I would identify at least one potential champion within the firm who is willing to run with it – to work up a strategy and a set of rules for agreement, and then to get on with it within the agreed parameters. The same is true for e-discovery providers, few of whom have begun to use the potential of social media.

It was a privilege to be invited to New York to speak to this audience and to share a platform with panelists of this calibre. My thanks to the New York City Bar Association and to Denise Backhouse for the opportunity.


About Chris Dale

I have been an English solicitor since 1980. I run the e-Disclosure Information Project which collects and comments on information about electronic disclosure / eDiscovery and related subjects in the UK, the US, AsiaPac and elsewhere
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