The Ethics of Social Media and Online Marketing

Last weekend the Oregon State Bar held the first ever Solo & Small Firm Conference in Bend, Oregon.  The lineup included nationally recognized speakers and Oregon-based experts, including the incomparable David Elkanich of Holland & Knight.

David gave two great presentations at the conference, and I promise to blog about both. Today I start with a subject near and dear to my heart: The Ethics of Social Media and Online Marketing.  Here are a few tweets to give you the flavor of David’s presentation:

A complete compilation of David’s tips can be found here.

Over the next days and weeks I will share other gems from the conference, including “best of” tips from:

  • Exchanging Documents Electronically
  • How Clients Can Win with Your Small Firm Resources
  • Tame the Digital Chaos
  • 60 Legal Tech Tips
  • and more!

All Rights Reserved 2016 Beverly Michaelis

Sorting Out Social Media

Later this year I will be submitting an article for the Oregon State Bar Bulletin entitled “Sorting Out Social Media: Tools & Etiquette.”  For those of you who can’t wait, here is a sneak preview:

Sorting Out Social Media: Tools & Etiquette

If you are blogging, tweeting, or posting status updates to build your brand and reach new clients, you already know how daunting it can be to keep up with social media.

Understanding ethical boundaries is an important starting point, as are privacy considerations. See Helen Hierschbiel, “Social Media for Lawyers: A Word of Caution,” (Oregon State Bar Bulletin November 2009) and Sheila Blackford, “Social Media Safety: Avoiding Pitfalls in the Kingdoms of Facebook, LinkedIn, and Twitter,” (Oregon State Bar Bulletin June 2010.)  But once you know the ethical and privacy concerns, how should you proceed?

Social Media Etiquette

While it may not be obvious at first glance, there is etiquette to using social media.  To keep your audience engaged and avoid irritating your “friends” and followers, apply these tips:

  • Give yourself the benefit of a broad-brush overview.  Read Carolyn Elefant and Nicole Black, “Social Media for Lawyers: The Next Frontier,” (American Bar Association June 2010.)  (ABA products are available at a discount on the Professional Liability Fund Web site.  Select – ABA Products under the Loss Prevention heading.)  Alternatively, check out Mashable, which bills itself as
    “…the largest independent online news site dedicated to covering digital culture, social media, and technology.”  Mashable has detailed how-to’s and online guides to Facebook, Twitter, YouTube, Google+, and LinkedIn, among others.  It’s also a great site to visit if you’re a gadget junkie.
  • Start slowly and build momentum.  While it’s tempting to set up your LinkedIn profile, Facebook page, and Twitter account on the same day and start posting and tweeting, your experience with social media will be better if you approach it gingerly.  Begin with one account.  Once you familiarized yourself with the terminology, acronyms, and abbreviations, you can move on to your next social media endeavor.
  • Engage with others.  This is what social media is all about – reading, sharing, and responding to what others post, asking what they think – not just pushing your own content in a “one-way” conversation.  This is an important point to grasp, but many law firms miss it entirely.  To an avid user, social media is an intensely personal medium of communication.  When you participate, you begin building relationships and become part of an online community.  If you aren’t prepared to interact, and if you don’t have the time to personally manage your accounts, then social media may not be for you.  For excellent pointers about the “social” aspect of social media, see Cindy King, “17 Twitter Marketing Tips from the Pros,” (Social Media Examiner October 26, 2011.) and Lisa DiMonte and R. Michael Wells, Jr., “Growing Your Online Footprint: An Ethical Approach to Building a Powerful & Influential Online Presence Through Social Media and Blog Writing,” (American Bar Association Young Lawyers Division/MyLegal.com October 14, 2011.)
  • Remember to give your audience a breather.  Most followers and contacts don’t want to be barraged by ten updates in a row from the same person.  If you haven’t been on Twitter or Google+ for a few weeks, don’t try to “make up for it” by over-posting.  Social media users can lose patience quickly.  If you engage in a posting frenzy, your content may be viewed as spam.  Followers and friends may soon unfollow, unfriend, or block your account.  Then all your effort will be for naught.
  • Test all links before including them in a post, especially if you using a URL redirection service like Tiny URL, goo.gl, or bitly.  If you post a link that returns an error message, your followers or contacts will be frustrated.  Some may inform you of the non-working link.  Others will ignore it and move on, never seeing your content.
  • Some users prefer to create a personal and business account for the same service.  For example, lawyer Susan Smith of the Smith Law Firm might choose to set up two Twitter accounts – one under her personal name and the other under the name of her firm.  If Susan uses both accounts to simultaneously post identical content she may annoy followers and wear out her welcome quickly.  In addition, not all content is appropriate for both personal and professional accounts.  The best approach is to use your personal account for personal interests and professional account for professional interests.
  • Should you thank other users who retweet, share or +1 your posts?  Some experts say yes, others say it isn’t necessary.  If you want to thank others who are sharing your content, you can do so publicly (where everyone can see your post) or privately (in a direct message to the specific person you wish to thank).  If you post publicly, pace yourself and keep our tip about over-posting in mind.  On Twitter, you may want to thank others who retweet your content by using #FollowFriday.  The #FollowFriday hashtag is used to suggest people to follow.  For example: #FollowFriday @OregonStateBar.  By using #FollowFriday to recommend someone with whom you interact, and who retweets your content, you show appreciation for their support, build a stronger bond of social engagement, and provide your followers with the names of other interesting Twitter users.  You can read more about #FollowFriday and how it works here:
  • Speaking of public versus private posting, know the difference!  Twitter claims that “if you’ve posted something that you’d rather take back, you can remove it easily.” But I caution against relying on this.  Once content is posted publicly on the Internet in any social media site, assume it is cached and available somewhere – even if you removed it from your account.  This is another reason to take your time learning social media.  It is also a good reason to approach social media with the mindset that everything you post online is or can become public, even if privately sent.  Therefore, if you wouldn’t say something publicly, you shouldn’t post it online – anywhere.  This may seem like an overly conservative approach, but it will keep you safe.
  • Lastly, don’t be afraid to ask for help.  If you have colleagues who enjoy social media and have built a substantial following, talk to them.  How do they engage others?  How did they build a following?  What type of content do they typically post?  What is their take on our list of etiquette tips?  Do they have any pointers to share?  Having someone show you the ropes will shorten your learning curve substantially.

Essential Tools for Managing Your Social Media Presence

  • If you have more than one social media account, use a social media aggregator.  These services bring together in one location the posts, streams, and updates from the most popular social networking sites.  All are free.  The idea behind an aggregator is to gather all content in one location (as opposed to checking all your social media accounts separately.)  Of course they can also be used to simultaneously post content across multiple accounts, but remember to weigh this convenience against the potential downside of annoying your audience.  Some aggregators are web-based, others are available as desktop and mobile applications.  The most popular aggregators are Hootsuite, Tweetdeck, Netvibes, Yoono, Streamy, Flock, FriendFeed, and Socialite from Realmac Software. Aggregators also offer other helpful features, like scheduling of posts, direct uploading of images, videos, and files, mobile updates, organization of content into columns, auto-shortening of URLs, and alerts for specific types of content.
  • If you prefer a more “organized” experience on Twitter, consider TweetChat which organizes content by hashtag (topic) instead of conversation (like the aggregators mentioned above).  To use TweetChat, enter the hashtag you want to follow or talk about, and then sign in by using your Twitter account information.  Once you’re logged in, you’ll see only those tweets referencing the hashtag or topic you selected. Use the message box in TweetChat to participate in the conversation.  TweetChat is free.
  • Direct messages in Twitter seem to accumulate endlessly.  Deleting them one at a time on http://twitter.com is tedious. You can delete all direct messages or selective direct messages (messages from a particular user or messages containing a specific phrase or word) using the free online utility, InBoxCleaner. Deleting content from Facebook, Google+, or LinkedIn has to be done directly from within the application.
  • Backup your social media content using BackUpMyTweets (which also captures Twitter updates, mail, blog posts, and online photos) or the more comprehensive Backupify which captures content on Twitter, Facebook, Flickr, LinkedIn, Blogger, and various Google apps. BackUpMyTweets is free.  Backupify offers weekly backups for up to three personal accounts at no charge.  Pricing plans are available if you have more than three accounts or prefer nightly backups.  For more options, read Gina Trapani, “Free Tools to Back Up Your Online Accounts,” (Lifehacker August 12, 2009.) .
  • Want to keep in touch on social media without being a slave to your computer or mobile device?  Consider scheduling your posts.  Use your social media aggregator or one of these services described by Lars, “18 Twitter Tools for Scheduling Future Tweets and Improving Your Social Networking,” (Tripwire Magazine May 6, 2010.) .
  • Looking for more tools and ideas?  Check out these resources: Twitter – Robert J. Ambrogi, “Building on Simplicity: 20 Tools to Make Twitter Sing,” (Oregon State Bar Bulletin May 2009) and “Tweet 16: 16 Ways Lawyers Can Use Twitter,” (Oregon State Bar Bulletin January 2009); Blogging – ABA Legal Technology Resource Center: “FYI: Blogs” and “FYI: Feature Comparison – Major Blog Providers;” Facebook, Google+, or LinkedIn – Googling “Facebook for lawyers,” “Google+ for lawyers” and “LinkedIn for lawyers” will return pages of tips, ideas, and pointers.

Copyright 2012 Beverly Michaelis

Best of: Ethical Traps in Cyberspace

Earlier this month, I had the opportunity to attend the ABA Annual Meeting in San Francisco.  The CLE programming was excellent.  In a later post, I will blog about Solo Day 2010.  Today I want to share some tips from Ethical Traps in Cyberspace, sponsored by the Section of Labor and Employment Law.  The Cyberspace panel featured  Michael Z. Green, Paul R. Klenck, Carole Levitt, Mark Risk, and Julie Totten.  Here are the highlights (some of which I live-tweeted during the conference):

Discovery

  • Beware of “friending” witnesses on social networking sites in preparation for litigation.  Such contact may be deceptive if the purpose or nature of the connection is not made clear.  The same may hold true if the lawyer asks a third party to make the contact.  See Philadelphia Bar Association Professional Guidance Committee Opinion 2009-02 (March 2009).
  • If an individual communicates with his or her lawyer using a work computer, the communications may or may not be protected by attorney-client privilege:
    Scott v. Beth Israel Med. Ctr (no privilege in using work computer); Stengart v. Loving Care Agency, Inc. (e-mails sent via personal Yahoo! account on company laptop protected by attorney-client privilege.)
  • Serving a subpoena duces tecum on social media Web sites to obtain personal information of users is not permitted under the Stored Communications Act, 18 USC § 2701(a)(1).  Crispin v. Audigier.  Lawyers seeking social media content should rely on traditional discovery methods directed to the specific parties involved.
  • Employers are specifically prohibited from obtaining unauthorized access to their employees’ password-protected Web sites under the SCA.  See Konop v. Hawaiian Airlines, Inc. and Pietrylo v. Hillstone Restaurant Group.
  • The Internet Archive can be used to retrieve old Web pages.

Counseling Clients

  • Ask potential clients and witnesses about their use of social media; review social media content as needed.
  • Caution clients about posting anything related to their case, particularly content that may reflect on their character or credibility.  It may be best for the client to discontinue use of social media altogether.
  • Warn your client that opposing counsel or someone connected to opposing counsel may attempt to independently access the client’s profile or “friend” the client.  Even if this does not occur, social network postings may be within the scope of a traditional discovery request.
  • Be sensitive to spoliation of evidence issues, for example: if a client changes a pre-existing social network page, is this equivalent to altering a “document?”  What about changing privacy settings or deactivating or removing an account altogether?  Would the result be different if the profile was preserved before it was removed or changed?

Social Media Policies

  • Provide guidance on both employer-sanctioned and personal use of social media, in particular how personal use may affect the employer or the employee’s professional standing.
  • Remind employees that anonymity on the Web doesn’t exist.
  • All employees should respect the intellectual property of others and avoid posting content that is defamatory or inappropriate.  Using social media to “fire back,” harass, or negatively engage others can come back to haunt the employee and employer.
  • Additionally, lawyers and legal support staff should follow ethical parameters: protect client confidentiality, avoid giving legal advice, and use disclaimers as needed.
  • Social media policies should be drafted to encompass emerging technology and reviewed regularly.
  • PolicyTool is a good place to start if you need to craft a social media policy.

Internet Marketing for Lawyers

  • Good judgment is essential when using social media.
  • Marketing via the Internet should comply with ethical rules regarding advertising, solicitation, and the unauthorized practice of law:
    • Real-time electronic contact is specifically prohibited by ABA Model Rule 7.3(a).
    • Web sites and blogs should specifically state the jurisdictional limits of the attorney’s practice to avoid UPL issues.
    • Content should be current, accurate, and subject to substantiation.
    • Content should not create false expectations.
  • Jurisdictions vary.  Know the rules of your specific state(s).

Facebook and MySpace

  • Review your privacy settings, checking all sections and subsections.  Perform this review on a regular basis, as social media providers change settings frequently.
  • As with any Web site, use strong passwords or better yet, a pass phrase, and change it from time-to-time.
  • Take control of what “friends” or “friends of friends” may post about you, especially when tagging you in photographs.
  • Limit use of games or third party applications that access your personal profile.
  • “Friending” judges before whom you appear is probably best avoided.  In Florida, judges are specifically prohibited from “friending” lawyers who appear before them to avoid the appearance of impropriety: Florida Supreme Court Judicial Ethics Advisory Committee Opinion Based on: Florida Canon 2B.

 

LinkedIn

  • Use of LinkedIn’s “specialties” may be problematic.  Research your jurisdiction.  If necessary, use a disclaimer or leave this area of your profile blank.
  • Also proceed cautiously with regard to client recommendations.  Since all LinkedIn recommendations must be approved by the user, use this opportunity to correct any content that may run afoul of the rules.  For example, it may be necessary to ask the client to add disclaiming language or delete content that constitutes an inappropriate comparison.

Ethical Traps in Cyberspace was an engaging program.  Kudos to the top-notch panel members:  Michael Z. GreenPaul R. KlenckCarole LevittMark Risk, and Julie Totten.

Social Media and the Jury Room

In December 2009, the Committee on Court Administration and Case Management of the Judicial Conference of the United States endorsed a set of suggested instructions on juror use of electronic communication technologies.  In May 2010, Ohio jumped on board with a jury admonition:

The new instruction admonishes jurors not to obtain any information from outside sources including the Internet, reference books, newspapers, magazines, television, radio, a computer, a Blackberry, iPhone, smart phone, and any other electronic device, and further admonishes jurors not to send or receive e-mails, use Twitter, text messages or similar updates, blogs and chat rooms, Facebook, MySpace, LinkedIn, and other social media sites of any kind to obtain information regarding the trial.  (Excerpted from OSBA Jury Instruction Tackles Social Media, Electronics in the Courtroom.)

Could Oregon be next?  Looks like it.  The Chair of the 2010 Oregon Civil Jury Instruction Committee has confirmed that members are currently working on an amendment to Precautionary Instruction 5.01. 

Oregon Uniform Civil Jury Instructions (OCJI) are updated annually.  Based on prior publication cycles, practitioners should expect revised Precautionary Instruction 5.01 to be available in November 2010. 

OCJI are part of BarBooks and can be found online through the Member Login on the Oregon State Bar Web site.

Copyright 2010 Beverly Michaelis