Page 1

A Promises and Pitfalls of Social Media in the Legal Community

The

(855) 915-8888 • www.iconect.com

Š2011 iCONECT Development, LLC. All rights reserved.


I If

the blockbuster film “The Social Network”

taught us anything, it was that lawyers know social

media, but too often in a laugh-inducing, three-steps-behind

“My Cousin Vinny” way. While statistics show that a majority of

legal professionals use social media, those numbers can be misleading. The 2010 American Bar Association’s

While legal professionals who

Legal Technology Resource Center

regularly engage in social media

survey found that 56% of

tend to stand out in their

responding lawyers maintain some

organizations, most still grapple with how to

type of social media

effectively use the

presence, but many

various channels

may have simply

(e.g. Facebook,

created a profile

Twitter, YouTube,

somewhere and left

LinkedIn, etc.)

it. Still, this number

available to them.

was higher than the

43% of respondents in

2009 and 15% in 2008.i Only

From personal brand-

building to professional

17% use it for career development

practice, the digital domain offers

and a surprisingly low 6% leverage

legal industry professionals a host

available information online for case-

of opportunities and pitfalls to drive

related investigations.

success or failure.

©2011 iCONECT Development, LLC. All rights reserved.


P The Promises and Pitfalls of Social Media in the Legal Community

(855) 915-8888 www.iconect.com

The Promises

securing one million Twitter followers in 25 hours and 17 minutes.iii After a few months, he is closing in on Lady Gaga. Ah, to dream.

1. Creates Connections

5. Creates Community

Social networking enables risk-averse legal professionals to develop connections. For example, LinkedIn permits registrants to see whether they have relationships with individuals who know someone they would like to meet. Before this tool, lawyers simply had to rely on gossip or a deposition to learn about another person’s interests, travel schedules, and job responsibilities. Today, advanced search on the site for registrants whose job title currently includes the words “litigation support” generates approximately 2,000 names, while “attorney” results in more than 250,000. By participating on LinkedIn, each of them is essentially inviting contact, rather than avoiding it.

Whether through 140-character bursts on Twitter, or longer commentary on a blog, one’s presence helps create community. A search of the term “legal” on Listorious.com reveals numerous members of the community (and a few celebrities erroneously included), who tweet their insights and resources on a regular basis. This type of micro-community provides validation for your commentary, centralizes information, and serves as a point of distribution for content.

2. Boosts Your Brand

Sending or receiving an invitation to connect is not enough. Ultimately, how you cultivate a relationship is what enhances your personal brand. Each of us has a message that we convey to the community about ourselves, whether we are technology buffs, project management specialists, or just frustrated with the judges on American Idol. As your peers associate with you, they will view you as a recognized expert (or something else), even one on reality television. JDSupra.com is a key legal community resource for distributing relevant content and enhancing your reputation in the process.

3. Raises the Value of Resources

That process of raising one’s profile requires sharing valuable resources on topics in which peers may be interested. Whether offering litigation support best practices, general technology tips, or a Jersey Shore recap, the circulation of this material offers the chance for engagement. One can also review queries from others on a particular topic, similar to those found in LinkedIn’s Answers forum, and immediately respond by sharing a relevant document, link or even a quick introduction to an expert. Following “The Situation” on Twitter does not count.

4. Fuels Follow Up

What does count is follow-up. Each point of contact has the potential to encourage further interaction and networking. Given that only 8% of adult Internet users in the U.S. were using Twitter as of November 2010, there is always an opening to increase one’s presence online.ii After all, Charlie Sheen set a Guinness World Record by

6. Fosters Dynamic Dialogue

Perhaps most importantly, participation fosters an ongoing dialogue related to substantive (and occasionally comical) issues between colleagues. In a dynamic environment, that conversation on a range of topics, from new rules to emerging technologies, is critical for individual and collective success. Social networking now enables a crossdisciplinary discussion between the judiciary (within certain limitations), practitioners (even more limitations), litigation support professionals (no-holds-barred), vendors, and legal technology experts, among others, in a way that is unprecedented.

The Pitfalls

1. Produces a Permanent Record

In “The Social Network,” the Mark Zuckerberg character sees the date that he dissed online at a local hangout and tries to reconnect with her. She rebuffs him with, “The Internet’s not written in pencil, Mark, it’s written in ink.” By now, most users of technology recognize that the digital document trail they leave behind is often permanent. Yet those who post short updates on their preferred social networks seem to frequently forget. From a personal perspective and as it relates to professional practice, you will be linked to your words in perpetuity so choose them wisely. Just ask the Beefeater who lost his ticket to Prince William and Kate’s royal wedding (and his job) for an inappropriate Facebook post about the future princess.iv

2. Serves as Source Material for Discovery Unwise conversations aside, the discussions taking place in the social media environment may have a material

©2011 iCONECT Development, LLC. All rights reserved.


P The Promises and Pitfalls of Social Media in the Legal Community

(855) 915-8888 www.iconect.com

impact on litigation and provide discoverable insights. As a result, organizations should implement an information management, retention and destruction policy to centralize communications and ensure universal treatment of all correspondence. This is critical since judicial decisions addressing records retention often lack uniformity.v At trial, it is not only the lawyers who are evaluating tangential data; jurors are routinely searching (albeit improperly) through publicly available records for details about a witness or fact pattern.vi

3. Evokes an Ethical Dilemma in Discovery

Despite the fact that basic personal information is publicly available online, those who try to circumvent the privacy restrictions of a social network face a prominent ethical obstacle. Facebook, for example, only permits those with pre-approved access to see an individual’s postings. As such, there is a growing debate related to finding that information through dishonest means and surreptitiously seeking to befriend someone online in order to gain access to his or her background. When the Philadelphia Bar Association’s professional guidance committee addressed this issue, it concluded that such conduct involving a lawyer would violate several rules of professional conduct.vii

4. Confuses Context

Most social networkers share personal and even corporate details as part of a larger set of facts; however, subsequent readers unfamiliar with the initial background can easily take them out of context. A 140-character tweet or social media update about an issue does not necessarily summarize the matter in its entirety. This cursory review could confuse a sensitive situation, either from a personal outlook in terms of relationships or in a corporate setting. Just change your Facebook status from married to single and see what happens.

5. Takes Time

6. Dilutes Discourse

That level of participation in social media-based conversations tends to dilute more formal methods of communication. The brevity and informality in the usage reduces the attention and importance that individuals assign to their correspondence. Soon, court filings will look like text messages and judges will sign their orders with Twitter handles (e.g., @JudgeJudy). Kidding aside, individuals incorrectly believe that informal exchanges are less likely to appear during a records review; however, that false sense of security is dangerous in the current climate of sophisticated electronic discovery. If a document is really juicy, one might even send it to Wikileaks.

CONCLUSION

Social networking offers tremendous advantages for legal professionals seeking to raise their profile, and strengthen relationships both within their organizations and in the broader community. It also presents practicespecific opportunities for savvy users familiar with its capability. Those who navigate carefully will find success, but material missteps could endanger a case or career. Just ask the Beefeater.

Catherine Sanders, Social Media Grows: ABA Survey Shows More Acceptance Among Lawyers, Law Technology News (August 01, 2010).

i

ii

http://pewinternet.org/Reports/2010/Twitter-update-2010.aspx.

iii

Ann Oldenburg, Charlie Sheen Breaks Twitter Record, USA Today, March 3, 2011.

Scots Guard Removed From Royal Wedding Duty for Making Vile Slurs Against Kate Middleton, MailOnline, April 25, 2011.

iv

v Victor Stanley, Inc. v. Creative Pipe, Inc., 2010 WL 3530097 (D. MD. Sept. 9, 2010) (“…case law is not consistent across the circuits, or even within individual districts.”) vi Ken Strutin, Social Media Misbehavior by Jurors Afflicts Trial Process, New York Law Journal (March 16, 2011).

The Philadelphia Bar Association’s Professional Guidance Committee Opinion 2009-02 (March 2009). See also Carole Levitt & Mark Rosch, Don’t Fall into Ethical Traps, Law Technology News (May 01, 2010). vii

Average Time Spent Online per U.S. Visitor in 2010, comScore Media Metrix, http://www.comscoredatamine.com/2011/01/average-time-spent-online-per-u-svisitor-in-2010.

viii

The abbreviated nature of the commentary is meant to save time because the process can be intense for those who measure their efforts in six-minute increments. From a productivity standpoint, the duration that users spend on a social media network can be significant. A study by comScore Media Metrix found that the average American spent 32 hours per month on the Internet in 2010.viii That, of course, does not include time spent watching past episodes of popular TV shows on Hulu.com while reviewing documents or watching the clips your friends recommend to you via social media. After all, Americans spent nearly a quarter of their time online on social networking sites and blogs in 2010, up from 15.8 percent in 2009.ix

The Neilsen Company, What Americans Do Online: Social Media And Games Dominate Activity, August 2, 2010, http://blog.nielsen.com/nielsenwire/ online_mobile/what-americans-do-online-social-media-and-games-dominate-activity. ix

©2011 iCONECT Development, LLC. All rights reserved.

www.iconect.com

/530_iconect_wp_social_media_legal_0911  

http://www.brandchannel.com/images/papers/530_iconect_wp_social_media_legal_0911.pdf