“A professional service firm without a website is one that will be out of business in a year…two tops,” said an accounting firm managing partner recently when discussing marketing online.

Five years ago it might have been an option, but not anymore. Not having that online presence is arguably like not having a phone, it just limits your communication with the rest of the world.

Social media, though, is not the same. Yes, social media is popular. Pew Research estimates about 70% of adult Americans use some type of social media. Broken down by age, nearly 90% of millennials use social media, with Gen X at about 80%, younger baby boomers about 65%, and the biggest fall off comes at those over 65, with just 35% using social media.

Using social media is not required marketing for professional service firms, but they are, as a group, moving very rapidly in that direction. But with so many social media options, where should businesses and service firms go in the social media universe?

We counsel a lot of clients, and we have found no two are alike. What social media works for one firm, might be totally different for others. Even within the same practice area, or geography, it varies widely.

We have found that there are 5 primary social media platforms that professionals need to be aware of, monitoring, or active on, if they want to be seen as relevant with the marketplace.

We have determined these are the big five:

Now nearing the 2 billion user mark; very popular, all purpose social media; accepts text, images, and video; rapidly growing marketing tools such as advertising and boosted posts

Arguably the most respected professionally; excellent tool for pier to pier connections; used heavily in recruiting and job hunting; nearly half a billion users

Originally “image” oriented, now using video, too; used by more than 25% of Americans; currently a favorite of millennials; used by half of all major U.S. brands

More than 300 million active monthly users, but more than 700 million registered users; appeals to users when news or frequent updates are important

Yes, YouTube is social media; more than 1 billion users; reaches more 18-49 year olds than cable TV network; generating billions of view of hundreds of millions of hours of content…daily!

Social Media info graphic. Image courtesy Walter Lim

Our experience is that each company, firm, or brand, typically has one social media that is used the most by their clients and customers, but that it takes some research to determine which. Additionally, firms are well served by exploring what customers and clients are using social media for. Is it news, entertainment, images, videos, text, or interaction?

Typically we recommend that firms and brands create a presence on each, but focus on the one that proves most engaging with clients and customers. The reasons for being on the others, are that social media tastes change, and you don’t want someone social media “squatting”—opening an account in your name and treading on your reputation.

There are wildcards, too. For some industries and for some audiences, Pinterest has become a big player. For Digital Natives, the next generation after millennials, Snapchat is growing rapidly. Blogging is another often overlooked social media many firms are finding customer and client engagement with.

If being vibrant, relevant, and attractive to a variety of potential markets and demographics, think about social media platforms and which ones might work best for your firm. Start with those mentioned in this article, and you’ll be well on your way to social media success! •

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There has been an argument of attorney advertising ethics since the Supreme Court opened the doors for attorney advertising back in 1977 (Bates v. Arizona State Bar 433 U.S. 350). To this day, many senior partners feel resentment toward any kind of advertising, even to the point of resisting the use of websites for many years. Just a few short years ago, many attorneys thought that having a website was optional. Today many consider working without a website to be “business development suicide.”

With the rise of social media, the legal profession is again facing conflicting opinions on social media’s place, its rules of use, and the ethics involved in participating. What appears to be different from the initial wave of attorney advertising of the after the 1977 ruling, and even different from the Internet wave that first hit in the 1990s, is that many attorneys are rushing into the social media space rather than avoiding an online presence.

Social media has the lure of being not only a great source of legal and case-specific research, but also as a business development tool. To begin to understand the minefield of social media ethics, it’s important to go further back to understand just how social media has transformed our way of communicating online.

Social Media, Web 2.0 And What They Mean

The first wave of the Internet, what might be called “Web 1.0”, was not so much a new form or communication, but rather a new media platform. For many it was simply another “place” to post information.  When the first websites came out, they basically mimicked ads, brochures, newspapers, and even broadcast programs in style and content, only they were accessed through the Internet. Law firms, if they had websites, typically posted general information about the firm, its practice areas, and profiles of the key attorneys.

Web 2.0 and social media is different is because actually changed the way we communicate via the Internet. Most importantly,  what was one-way communication online has become two-way communications and conversations. Formerly companies, brands, media companies, and yes, law firms controlled the flow of information on their websites. Now viewers and users have easy access to more information as well as the ability to engage in conversations or post their own information.

ABA Commission Proposal On Use Of Technology

State bar associations have been rushing to keep up with social media, and the first wave of case law has been hitting the courts. In an effort to create some kind of national standards, the American Bar Association’s Commission on Ethics 20/20 has just released its initial proposals relating to lawyers’ use of technology based client development tools. While not likely to be adopted until fall of 2012, the proposals are seen as a general indication of where the ABA sits on several keys issues.

The Commission is seeking to clarify the difference between a “potential” client and a “prospective” client. The Commission’s proposed wording of Rule 1.18 (a): “A person who communicates with a lawyer about the probability of forming a client-lawyer relationship and has a reasonable expectation that the lawyer is willing to consider forming a client-lawyer relationship with respect to a matter us a prospective client.”

While the term “potential” client has not been fully explained yet by the commission, it is believed to indicate the universe of all public persons.

The general idea here is that use of advertising, websites, and social media are okay when directed at “potential” clients. This becomes important in light of the ABA rules on advertising, whereby the ABA identifies a difference between “communication” and “solicitation.”

Advertising Rule 7.3 (a) states “A lawyer shall not by in-person, live telephone or real-time electronic contact, solicit professional employment from a potential client when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain” with a few exceptions, such as contact with another attorney, family member, or has a prior professional relationship with the lawyer.

The Commission seeks to define communication as less targeted than solicitation, such as advertising toward the general public rather than a single person or entity. So general advertising, Internet advertising, or responding to requests for information, even when automated via the Internet, are considered communication, and not solicitation, when targeted to the general public.

Another area addressed by the Commission is recommendations, but unfortunately it did not address the most common one of the day, the LinkedIn recommendation. Rule 7.2 (b) currently prohibits a lawyer from giving anything of value for recommending a lawyer’s services, with a few exceptions. The commission noted that many law firms are now using websites and social media, and that recommendations are becoming more of an issue. On note of the Commissions was the use of promotional t-shirts, and offering a prize to anyone posting a picture wearing the shirts. For the moment, the Commission has indicated that the wearing of a t-shirt does not inherently constitute a recommendation, but this is an area the Commission will be looking to address more carefully before adoption of rule changes.

Other Ethical Areas Of Social Media To Keep An Eye On

Several social media areas have become “hot spots” for attorneys using social media. Here’s a brief survey of some of these, and while they may have originated in other states, many social media ethicists and legal journalists believe these to be the main areas attorneys need to stay current on no matter what state an attorney is practicing in when engaging in social media activity.

1

Social Media As Advertising

The trend in classifying social media communication is social media is governed by advertising rules and regulation. As such, it’s prudent to review not only The State Bar of California rules and regulations, such as Rules of Professional Conduct Rule 1-400 on Advertising and Solicitation, but also the California Business and Professions Code from the Legislative Counsel of the State of California.

While some advocate “Advertising Material” disclaimers, others have adopted more simplified disclaimer statements. ABA rules require this for some advertising applications, As law in this area emerges, it appears prudent to assume that social media activity is very likely to be considered advertising, and therefore attorneys should use the same cautions as any other public communications, such as websites, advertisements, business materials, brochures, etc. As basic guidance, this includes general tenets such not making untrue statements, not presenting matter in confusing or deceitful ways, not omitting necessary facts, using incorrect titles for “specialization,” or failure to properly disclose the nature of the communication. While disclaimers are not fool-proof, it is better to have a well written one than not at all.

2

Unauthorized Practice Of Law

As simple as it seems to not practice law online in a social media context, this appears to be a slippery slope. Attorneys active in blogging and social media “Q&A” sites, especially in back and forth communications, can inadvertently create the possibility of attorney-client relationships.

Particular attention needs to be paid to two-way communication, such as blog comments, Q&A areas, and chatrooms. Depending upon the information that is shared, attorneys can run the risk of chatting or connecting with clients or potential clients. One tactic being used by some legal bloggers is to either not allow comments, or if comments are allowed, they are not responded to by the blogger, allowing for information and opinions, but not ongoing conversation.

3

Location & Geography

With the Internet, there is no geographic protection. Conversations by attorneys online in the San Fernando Valley can be shared with people across the country and even internationally. When discussions or conversations emerge, they may and will very likely cross geographic boundaries, and possibly even resulting in unauthorized practice of law in a state in which you are not admitted to the Bar.

On the flip side of this issue is another potential location problem, only this time it’s too much knowledge. Recent cases have come to light where attorneys posted on Facebook, Twitter, Yelp, Foursquare, or other sites that identified their locations through GPS devices. In some cases, this has been interpreted as violation of confidentiality.

4

Blogs Vs. Websites

Is a blog a website? In common usage, a firm’s website is place that holds information about a firm, its practice areas, and biographical information of attorneys and personnel at the firm. A blog is a type of website, typically one by which the blogger disseminates news, information or opinion on a frequent basis. A blog can be a part of a firm website, or separate.

With requirements to archive legal communications, law firms have begun using blogs more actively for news feeds, because many of the popular blog platforms, such as WordPress and Blogger, have automatic archiving. Using blogs has made this easy and inexpensive.

The biggest problem in blogging is that some attorneys have used blogs as soapboxes, and offered public opinions in areas that have later come to cause problems with clients or cases. The use of blogs to relay news or information without comment is becoming a more common use, even to the point that many newsfeeds on legal websites actually use blog software, though opinions and comments may not even be featured as blog content. A suggested approach is to treat your blog as any other official communication, avoiding confusing, misleading, or false claims.

5

Social Media As Research

Social media has been a great new research resource for many attorneys. The ability to connect with large numbers of other attorneys and non-attorneys very quickly has made it one of the primary uses for many attorneys.

Trouble has arisen for some attorneys who have sought to acquire information through less than ethical means. Cases have emerged where attorneys anonymously conducting questioning via social media. Courts have not had a favorable view of this.

Conclusion

The most important point to put into practice in social media is that if you’re unsure of usage or ethics, contact the state bar association for clarification.  Using caution is definitely recommended when embarking on new social media “campaigns” or efforts. By minimizing exposure to some of the areas identified here, attorneys will be able to maintain a prominent social media presence while staying clear of several pitfalls that social media, even in its infancy, has placed in the legal profession’s way. •

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Valuation

FACEBOOK AT $90+ BILLION

As of our release date for this issue, Facebook was in the final prep stages for its initial public offering (IPO), and puts valuation on the social media site a little north of $90 billion. Investment experts are predicting this will add about $17 billion to Mark Zuckerberg’s personal worth.

Going Mobile

Global Cellphone Subscriptions: 6 million

Mobile Web Users Worldwide: 1.2 billion

Percent of Global Website Hits from Mobile Devices: 8.49%

Global Mobile Advertising ­Revenue in 2010: $1.6 billion

Global Mobile Advertising Revenue in 2015 (est.): $20.6 billion

* Source: mobithinking.com

Ones To Watch

TUMBLR.COM

This microblog social network platform is a real up-and-comer. Launched in 2007, Tumblr is now averaging 13 billion views per month (yes, billion with a “B”). Why do people like it? Users say it’s like all the others rolled into one easy-to-use site, it’s app friendly, and best of all, it’s cool.

PINTEREST.COM

Pinterest takes the ease of photo posting from Instagram and combines it with the posting of comments like the Facebook “wall,” to create a surprisingly new and fun social experience. On paper, it doesn’t sound like much (what social media does?) but users seem to get addicted very quickly. You can “pin” images, websites, and just about any content to your “pinboards” in a virtual bulletin board environment. Companies are quickly jumping on the Pinterest bandwagon, and while not confirmed yet, some Internet reporting agencies are indicating Pinterest, which was a startup in 2009, may already be the third largest social network in the U.S.

Global Social Media

­­WORLD’S BIGGEST SOCIAL SITES (estimated users)

Facebook: 900 million

YouTube: 789 million

QZone (mainland China): 480 million

Twitter: 300 million

Habbo (global, launched in Finland): 200 million

Google+: 170 million •

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Social media has added a new demand for employer protection from cyber activities.

 

Today, technology is growing by the nanosecond, far too quickly for employers to keep up. Long-standing privacy considerations are at near-constant tension with the advent of the Internet, social media, e-mail and other electronic communications tools.

To be competitive in today’s market, business owners must make effective use of social media. Current marketing trends almost require that businesses have an on-line presence, and volumes of encyclopedias have long since been replaced by Google searches. To protect their businesses, however, employers should set boundaries on their employees’ internet and social media activities, both inside and outside the workplace. Consider these protective methods to avoid damage to the company from employees’ electronic communications and social media activity:

Documentation. Implement effective and thorough policies on social media activity, confidentiality and electronic communications. Employees should be reminded in writing that all electronic communications created on company equipment or accounts will be monitored by the company, and that they have no privacy rights in these communications.  Have your policies reviewed by legal counsel – technology moves faster than the law ever will, and today’s courts are deeply challenged by litigants’ rapidly-developing arguments over newly-discovered electronic media.

Ownership. When an employer provides cell phones and laptops to employees and pays for the cell phone account and the wireless access, the employer owns and controls the cell phone number, e-mail inbox, internet accounts, and all social media or other electronic communications created by the employee while on working time, using company equipment, or otherwise controlled by the employer.

Included in “ownership” is the company’s brand, logo, customer information or other trade secret, confidential or proprietary property. While the employer may not prevent the employee from engaging in social media activities on his own time and while using his own equipment, the employer does have the right to pursue a claim against an employee who posts defamatory content on the internet.

Similarly, although an employer cannot safely terminate an employee who vents about a fellow employee in his social media posting, the employer can certainly terminate the employee who harasses a fellow employee in violation of the company’s anti-harassment policy, even when that harassment occurs during the employee’s off-duty conduct.

Monitoring. Employers can actively monitor their employees’ communications and internet activity, both internally and externally, as long as employees have been warned in writing that employers can and will do so in their discretion. Employers should also conduct their own internet searches using tools such as “Google Alerts” to track the information that has been published about the business and its personnel. 

Ultimately, business owners should keep in mind that you are (or should be) the owner of your company, your technological equipment, your electronic communications accounts, your employees’ working time and your reputation. With the advent of technology, we are drowning in information, but starved for knowledge. Make sure that the information publicly available about your company is not the information your employees choose to post, but instead is the knowledge you want to publish. •

CASE IN POINT:
Why Have A Systems Use Policy?

An insurance agency allowed its new agent, Cindy, to use her personal laptop computer and iPhone to conduct her business activities. The agency was thrilled to avoid the cost of a new computer, and was more than happy to reimburse Cindy for her business calls made on her personal cell phone.

Unfortunately, Cindy didn’t perform to the level the agency expected of her. Her sales results were substandard, and she seemed to be wasting an inordinate amount of time on personal matters in the workplace. Her supervisor reviewed her Internet activity while at work and discovered that she was spending several hours each day surfing the Internet on shopping sites, Facebook, and other personal search activities. Much to the agency’s surprise, they also discovered that Cindy was downloading customer lists and files and sending them to her home e-mail address. She was planning to move her business to a competitor agency.

The agency terminated Cindy and sued her for unfair competition activities. The court refused the agency’s demand to recover its customer list, because the agency had previously permitted Cindy to download it to her personal cell phone without restriction. The court also refused to consider the agency’s computer search results in its action against Cindy, because the agency permitted her to use her own laptop for business and personal use. The agency had failed to implement a “systems use” policy notifying Cindy in advance that her computer could be monitored at any time without prior notice. •

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