“Watch what you say” is the advice being given to law students today due to firestorms on Twitter and haunting social media posts. Now “is the time to adjust your privacy settings,” Marta Ricardo, assistant dean and dean of career services at Columbia Law School told Bloomberg Law.
Ricardo noted that a student had a law firm offer “withdrawn because of what they said on Twitter.” Ricardo sits with law students and checks their social media presence, with their permission. Being cautious doesn’t mean that “you can’t have political views,” she said. Civil “discourse is fine,” and the tone used usually matters more than the content of what is said, Ricardo said.
“More and more, our identities as professionals and as people will be wrapped up in our social media presence,” Lauren Casazza of Kirkland & Ellis LLP in New York told Bloomberg Law by email. So it’s important to “think twice before posting and commenting,” said Casazza, who is co-chair of the recruiting committee in her firm’s New York office.
Kirkland’s guidance to its attorneys focuses on showing “integrity and common sense in everything they do, both within the legal world and on social media,” Casazza said. “An attorney’s internet and social media footprint is readily accessible by clients, courts and competitors anywhere in the world,” Casazza said. Kirkland’s law student associates are told to abide by the firm’s social media policy. They should consider if they would “want a post to show up on the cover of the newspaper, or be sent to their grandparents,” Casazza said. “We all have First Amendment rights, but we also must follow the rules and be mindful that how we express ourselves online will be with us forever.”
The Cold, Hard Truth
Law firms are facing new ethical and legal challenges involving cybersecurity and oversharing in their employees’ use of social media. To protect themselves and their clients, firms are instituting policies to ensure client confidentiality and proper representation by employees, even in their personal use of the platforms. “The most common concern is making sure that personal social media accounts remain personal, and don’t appear to bear the imprimatur of the firm,” Jacob Rooksby, who is to become dean of Gonzaga University School of Law in Spokane, Wash., on June 1, told Bloomberg Tax. “Everyone must realize that postings to ‘public’ accounts can reflect on the firm and its clients, even when profile pages indicate ‘all views are my own; retweets do not imply endorsement.’”
Social media offers opportunities to access a global audience, Kelly Phillips Erb, a tax attorney and senior editor at Forbes Media LLC, said. Many states have specific ethical rules for lawyers using social media that employees may not be aware of. It is important that a firm set expectations to protect its brand and its clients’ privacy. “There are mounting instances of attorney and judge ethical violations involving social media use,” Rooksby said. “Some state bar groups have promulgated advisory ‘rules’ and best practices that should be heeded. A single lapse in judgment can have devastating consequences.
While social media might be great for sharing some things, any sharing of confidential information poses a very real threat to law firms. “The problem is that both attorneys and non-attorneys alike are so accustomed to sharing information via social media, from the inane (what I had for lunch today) to the personal (‘my divorce finally came through today!’) to matters relating to firm business (‘settled big case today’),” said Michael E. McCabe Jr., the founder of McCabe Law LLC in Potomac, Md.
“The ethical duties of client confidentiality and client loyalty are so fundamental to the attorney-client relationship, and yet with the ease of access and sharing of information via Facebook, LinkedIn, Twitter, or on firm-sponsored sites such as blogs and websites, it is important for attorneys to stop and think before they post.” Mayer Brown LLP has implemented social media policies to address such concerns. Marcia Goodman, a partner at the firm’s Chicago office, said employees should always be mindful “not to post or view material that infringes the intellectual property rights of a third party.”
“We want to ensure our clients know that we are not just mindful of their confidences, but that we ensure that we have reasonable protections in place to avoid violating their secrets,” McCabe said. “We have an ethical duty of technical competency, and that can be interpreted to include using modern hardware and software solutions to protect the firm’s valuable secrets.”
First Amendment Issue
Many employees, particularly non-attorneys within a firm, may argue that social media policies would infringe on their First Amendment rights, but tax professionals say the First Amendment may not apply in some cases. “Private law firms are free to enact policies that may limit the First Amendment rights of their employees, attorney and non-attorney alike,” Rooksby said.
This is because “attorneys hold privileged positions in society,” and law firms’ obligations are to the clients, Rooksby said, adding that the more “private” an account’s setting is, the fewer concerns a law firm should have about content. “Some people may believe they have a First Amendment right to post anything they want. Maybe so when it comes to the government control of speech, but law firms are private employers, and nearly all attorneys and non-attorneys are at will,” McCabe said, referring to voluntary employment subject to termination with or without cause or notice. “So it is very important that non-lawyers are covered under any social media policy,” he said.
Goodman said that employees should make disclaimers indicating that they aren’t speaking for their firm, client, or other entity. She also advises employees “not to make statements that could be construed as legal advice or as creating an attorney-client relationship on social media.”
Intellectual property attorneys agree that law firms should have a written policy to govern their employees’ use of social media. Scott L. Malouf, a social media lawyer in Rochester, N.Y., who helps other attorneys use social media evidence in discovery and litigation and helps organizations use social media to meet business and compliance goals, offered the following suggestions:
First, don’t view the policy as set it and forget it. Social media is too dynamic-platform services, user culture, and relevant legal requirements change quickly. A policy, ideally, should evolve in response.
Second, don’t aim for perfection. Addressing “every” social media scenario can become an overwhelming task because platforms are just too varied. A better approach may be to create a shorter, user-friendly policy and support it with solid training and concrete examples.
Third, remember the positive aspects of social media. Risk reduction, legal and ethical compliance, and creating clear expectations often drive social media policies – yet a policy shouldn’t undermine the benefits of social media.