http://www.socialmediaesq.com

Or, in the style I prefer:

Social Media, Esq.™

You’ve heard hype. You’ve heard hysteria. And you’ll continue to hear a whole lot more. What should you believe? As is usually the case, you’ll find the truth somewhere in the middle. In order to determine what constitutes the spectrum and where the “middle” actually is, we need to take a broad look at social media in general, how pervasive it has become, and how it is being used. As we begin to see creative implementations of this “social media revolution,” we begin to get a better understanding of where we are and where we are headed. The following video provides an excellent, albeit biased, summary of what social media is and how quickly and pervasively it infiltrated so many areas of our lives:

I think it is a little premature to compare the social media revolution to the industrial revolution. Okay, it is “a lot” premature for that comparison. But it is interesting nonetheless. And while more and more people jump onto the social media bandwagon, it remains to be seen whether social media his significant business implications beyond the already acknowledged means of contact, small-scale dissemination of information (when was the last time you had something that truly went “viral”), and social interaction. Only time will tell what the numbers described in the video will bear out. One thing is certain; the timeframe in which social media operates is significantly compressed compared to the timeframe in which other media outlets or other technologies have developed.

As an attorney, one of the sites I frequent is JDSupra.  The site is not your typical social network.  Rather, it is a document repository for individuals and organizations within and without the legal profession:

JD Supra allows lawyers, law firms, and legal professionals to publish and distribute their work online to a wide audience.

Legal professionals publish and share court filings, briefs, alerts, articles, newsletters, and numerous other legal documents on JD Supra.  Our tagline reads: “Give content. Get noticed.”

I frequently contribute articles, briefs, and orders.  More frequently, I use the articles, briefs, and orders posted by others.  It is a great way to promote myself and my practice and, at the same time, it is a great resource for staying abreast of evolving legal issues and cutting edge legal decisions.

Yesterday, I uploaded some of the recent filings and orders in the highly-covered and highly-debated Authors Guild v. Google, Inc., class-action lawsuit.  You might know it as the Google Books or Google Library class action or even as the Google Books Settlement.  For those who haven’t heard, Amazon, Microsoft, and Yahoo! have allied themselves in opposition to Google’s attempt to get judicial sanction that would allow Google to scan and digitize millions of pages and books that are still copyrighted but whose copyright owners cannot be located.  And Amazon filed its Objection to the Proposed Settlement yesterday (September 2, 2009).  I ran across it online, glanced through it, thought it might be of interest to others, and proceeded to upload it to JDSupra.  At that point, I continued on with the rest of my busy day.

Several hours later, I was at a friend’s house playing soccer with his little girls (it is their first year of soccer–I can almost hold my own) when my Blackberry started to buzz.  Adrian Lurssen, an early Yahoo! employee and current Director of Communications at JDSupra, sent me a tweet and asked if I would be interested in writing a brief guest-blog about Amazon’s Objection and the Google Books case in general.  Standing on my friend’s back patio, I fired up my preferred mobile Twitter app (it is UberTwitter if you are wondering) and quickly replied that I was definitely interested.

Adrian and I DM’ed back and forth and tossed around a few ideas.  My loving wife (who is a “real” IP lawyer–a patent attorney, as opposed to the rest of us “soft” IP lawyers–also known as IP litigators) cut me some slack and I pounded out a piece that is now prominently displayed on JDSupra’s blog and in JDSupra’s hot documents: Amazon.com’s Objection to Proposed Settlement in “Authors Guild v. Google, Inc”.

Thanks to various social media outlets, in under 24-hours, I found a copy of Amazon’s Objection, read it, became interested in it, and then uploaded it to JDSupra (which passed it along to thousands of its followers and subscribers). The filing caught Adrian’s eye and he quickly connected with me through Twitter (and, at least, my cell phone).  We chatted back and forth. And now I have a featured piece posted on the front page of a website frequented by legal professionals.

I was given the opportunity to share some knowledge and “expertise” with an extremely large audience that would be unavailable to me but for Adrian’s and JDSupra’s help.  JDSupra has a timely and relevant piece that is likely of interest to much of its audience. The symbiotic nature of this connection is obvious.  It is a perfect illustration of what social media allows and how it can work.

Let me conclude by waxing philosophical.  Maybe the question needs to change from: “What has social media done for me today?” to: “What have I done for social media today.”  If you make valuable contributions to the medium, the medium will reward you in spades.  It may not happen immediately (Adrian and I have followed each other on Twitter for at least half a year) but opportunities will come and you can seize them, if you so choose.

This story started making waves around the Internet a few days ago following Kashmir Hill’s post at True/Slant and national attention soon followed as the story was featured on David Lat’s Above the Law blog as well as Law.com’s Legal Blog Watch.

The Story. The Florida Bar Examiners did indeed adopt a rule that allows them to review social media profiles for select applicants as part of the character and fitness evaluation.  Significantly, this new rule does not apply to all applicants to the Florida Bar.  It is surprising to me that the bar examiners would include the limits they thought necessary.  Under those limits, the rule only applies to:

• Applicants who are required to establish rehabilitation under Rule 3-13 “so as to ascertain whether they displayed any malice or ill feeling towards those who were compelled to bring about the proceeding leading to the need to establish rehabilitation;”

• Applicants with a history of substance abuse/dependence “so as to ascertain whether they discussed or posted photographs of any recent substance abuse;”

• Applicants with “significant candor concerns” including not telling the truth on employment applications or resumes;

• Applicants with a history of unlicensed practice of law (UPL) allegations;

• Applicants who have worked as a certified legal intern, reported self-employment in a legal field, or reported employment as an attorney pending admission “to ensure that these applicants are not holding themselves out as attorneys;”

• Applicants who have positively responded to Item 27 of the bar application disclosing “involvement in an organization advocating the overthrow of a government in the United States to find out if they are still involved in any related activities.”

My response: this rule is a good idea and should be expanded to cover all bar applicants.  The rule should be considered and adopted by state bars, government contractors, employers, and anyone else who has access to publicly available information (don’t tell me you didn’t look up the sex offender registry before you bought your last house).  As  long as denied-applicants have access to the specific reasons for their denial and a way to appeal or dispute the denial, the rule is quite sound.  After all, practicing law is a privilege not a right (my apologies to the cliché police).

This isn’t like a potential employer using a credit report or score in the evaluation process.  In that situation, the government has stepped in and said that, because job-applicants typically don’t have free access to their credit reports and because they have little or no control over what gets put in and what gets left out, certain protections need to be put in place.  Thus, based on the recognition that the inf0rmation in credit reports may be helpful to employers, Congress enacted the Fair Credit Reporting Act (“FCRA”) so that applicants and individuals will be adequately informed when their credit report is being reviewed by a potential employer and so that the applicant receives notice when an adverse employment decision is being made based on the information in the report.

But Facebook hardly needs the protections offered by the FCRA.  The last time I sat down and tried to add a blurb to my credit report, well, it didn’t really work out how I planned.  Unlike a credit report, your Facebook and MySpace pages are created by and controlled by–wait for it–you.  The Facebook Beacon fiasco aptly illustrates the difference between user-controlled content and information being shared without the user’s consent or knowledge.

You control what you post on your Facebook Wall; you determine who to add as MySpace Friends; you are the one who is writing those oft-silly (and more often meaningless) tweets.  If you voluntarily make your private information publicly available, you should not be surprised when the publicly available information is discovered by the public.

Candidly, I doubt the bar examiners really care about what you and your friends did last weekend; but they do (and should) care if you said you did one thing but actually did another.  Anyone who has already been subjected to the character and fitness exam conducted by various state bars has probably spent hours tracking down parking and speeding tickets from “infractions” committed more than a decade ago in who-knows-what state or country.

Is this information necessary? No.  Do we supply it? Yes.  Why? Because those tickets are public records and if a bar examiner looks hard enough and finds out that we didn’t disclose them on our applications, suddenly our candor before the tribunal (also known as honesty) comes into question.  And while a parking ticket from 15 years ago isn’t particularly important, dishonesty by an applicant of the bar to the bar is more troublesome.  Just as dishonesty by a job-applicant to its potential employer is a bad way to go about forming an employment relationship.

Like all publicly available information, bar examiners should be able to use social media outlets and profiles in evaluating their candidates.  The bigger question in my mind is why the Florida Bar Examiners are limiting it to Facebook.  As a practicing lawyer, one of the first things I do when we open a new matter is head straight to Google (and occasionally Bing) to vet the names of all the parties and witnesses.  Since they made the information (or compromising pictures) publicly available, they have made the decision to allow the public to access and use the information in any (non-lawbreaking) manner.

The Qualifier (for you people who are ready to rush to the comments and condemn me as anti-privacy):  This discussion is about publicly available information.  I know that the Florida Bar Examiners discussed several options and alternatives (such as requiring the applicant to “friend” the examiner or mandating disclosure of the applicant’s social media site passwords).  Any rule that allows access to information that is not publicly available should have protections, such as those implemented by the FCRA, to safeguard privacy interests.

If you want to limit your publicly-available profile on Facebook or MySpace and only share the details with your friends, you have my blessing when you fight the bar examiners on whether they should be allowed to access your private information.  I would certainly object if the character and fitness committee came asking for access to my journal (as opposed to a publicly available blog — like this one) or if they wanted to read what random high-school acquaintances wrote in my yearbook.

The Takeaway. In my mind, this issue warrants little, if any, debate.  If you don’t want the information that you wrote on that social media site to be available to future employers, bar examiners, or the IRS, don’t hit the submit button.  If you decide that your status update is important enough to be published on Mr. Gore’s Internet, take the necessary precautions to keep it out of the public domain.

This core “issue” is not an issue at all–there are plenty of tangential issues (such as how to handle information about you that is posted online by a “friend,” acquaintance, or opposing counsel, without your knowledge or consent).  Let’s focus our attention on those more meaningful issues.

The article walks you through a bunch of interesting statistics about what social media sites employers are using to evaluate employees and job candidates and utilizes real-world examples of tweets (Twitter) and Facebook status updates that have resulted in current employees getting canned and job hunters getting passed over.

To his credit, Mr. Toth also discusses how job candidates are successfully using social media to increase their chances and the particular information that employers look for when evaluating candidates online.  The bottom line, according to the post:

Your employees are using social networking tools. If you don’t, too, you might be missing a hugely valuable source of information.

So, get connected. But be careful about anything (1) you personally post and/or (2) use to make employment decisions. For the former, use our time-honored “mom” test (don’t say anything you wouldn’t want your mother to read). For the later, the test is simple: job-related, job-related, job-related. If it ain’t, don’t use it.

My $0.02: As a management-side employment law attorney (aka employment defense attorney), I can confidently say that, in addition to having your employers scour your social media activities, your employers’ lawyers are doing the very same thing.  Every time that your employer catches wind of a grievance, administrative charge, EEOC complaint, or a potential employment-related lawsuit, they will likely be all over your social media sites (like white on rice).  At a minimum, you can rest assured that, when I get retained on a case, social media sites are one of the first places I go.  That fact alone should give additional importance to the “mom” test described by Mark Toth.

This is a quick spotlight to tide you over while I finish up some more substantive posts.  If you are a lawyer or a Twitterer (and especially if you are a lawyer and a Twitterer), you need to check out Lance Godard’s 22 Tweets (http://22tweets.com and @22twts).  For the uninitiated, 22 Tweets styles itself as a source of “real-time Twitter interviews with practicing lawyers who tweet.”  Or, if Lance is able to popularize the site and get it added to Black’s Law Dictionary, the description would be more along the lines of:

twen·ty-two tweets

\twən-tē tü twētz\ (noun)

1. live Twitter interviews with practicing lawyers who tweet
2. a forum where lawyers tell their stories, one tweet at a time
3. the hottest new mash-up on Twitter

Archives of all of Lance’s 22 Tweets twitterviews can be found at the site.  I would encourage you to check them out, particularly my twitterview, which was conducted on July 9, 2009.

22 Tweets is an excellent complement to Lance’s other projects.  The appropriately named Godard Group is a marketing a development group that uses traditional and cutting-edge approaches to helping law firms and lawyers grow and prosper.  Lance’s social media endeavors serve as a great example of how lawyers and legal profession can capitalize on social media in order to gain exposure, credibility, expertise, and acknowledgment.

Be sure to follow @lancegodard and @22Twts on Twitter.  As with any “good” professional these days, you can also keep track of Lance on LinkedIn.  And for you Facebook users, you can become a Facebook Fan of 22 Tweets.

Finally, if you are a practicing attorney who is using social media in unique and innovative ways, I would love to profile your efforts.  Feel free to get in touch with me at any of the following:

Employees get terminated. A lot. And a lot of those terminations are based on performance.  As a plaintiffs’ attorney, the best evidence you have of a wrongful or discriminatory termination is documentation establishing that the “pretext” for the termination (the performance problem) is false.  Suddenly LinkedIn is in play.  Since the vast majority of reviews on LinkedIn are positive, any and all employment lawyers with plaintiff clients should be scouring the site for positive reviews from the same managers that term’ed the employee for “performance” problems.

Tim Eavenson, the author of the Current Employment article sums it up quite well:

This is just the Web 2.0 version of advice that management lawyers have been giving forever – be very careful about praising your exiting employees.  I know it sounds harsh, but glowing praise (particularly where it is undeserved) can really be a problem.  If an employment case goes to trial, you will be in the uncomfortable position of having to explain to a jury what happened in the hours or days between the writing the amazing recommendation and the time you canned the employee for poor performance.

Tim then poses the question of whether the recommendation feature on LinkedIn is worth anything.  He offers several suggestions and I agree: since anyone can make a recommendation, you can get recommendations from co-workers, friends, buddies, company insiders, or anyone else who might have a foot-in-the-door.  You can also get recommendations from prominent people you may have not worked but have interacted with: committees, boards, groups, clubs, etc.

The take-away: Employers – be careful; be very careful. Employees – a good-word or a thumbs-up from a respected colleague or member of the community can be the difference between an interview and a resume sent straight to the paper shredder.

As with all social media, the feature works better when more people use it.  And I encourage you to do that. When you have a reason to leave a recommendation or describe an experience or if someone requests your assistance, take that request seriously and give some thought into what you write.  As more and more employers turn to social media sites for background information on potential employees, this accurate data becomes invaluable.

I don’t know which RSS feed, linking service, twitterer, or other source pointed my in the direction of the Texas Bar Journal, but I suddenly found myself reading a wonderful article entitled: Social Media Tools for Law Firm Competitive Intelligence (pdf) written by none other than Emily Rushing (@emily_rushing), someone I happen to frequently follow on Twitter.

The article covers everything: Competitive Intelligence (Wikipedia); Communications (LinkedIn, Facebook, Ning, and Twitter); and Delivery Tools (PDFtoWord and FeedMyInbox).  While most recent law school grads are familiar with some or all of these tools, Emily’s article is a must read for all attorneys (and paralegals and staff).  Seriously.  I can’t emphasize this any stronger: This is stuff that you need to know.

So, after congratulating Emily on such a great article, I, naturally, pawned some of my work off on her and asked her to guest blog for the site.  We bantered a little about possible topics but I wanted her to take the blog post in whatever direction she felt it should go; the result is fantastic.  Here it is, in its entirety:

Tyson has kindly invited me to contribute a post on social media for law firm and legal competitive intelligence (CI) and I would like to briefly discuss some of the tools and techniques that I use in my capacity as CI Specialist for Haynes and Boone LLP.

CI may be defined generally as “the action of gathering, analyzing, and applying information about products, domain constituents, customers, and competitors for the short term and long term planning needs of an organization. Competitive intelligence (CI) is both a process and a product.” (wikipedia). Increasingly, social media is an integral part of both the CI process and product, and provides an invaluable resource in the identification of business opportunities in the legal industry.

This blog provides great discussion of the many social media tools available to legal professionals, so I won’t rehash the basics but will provide the following resource guide to selected, no-cost intelligence delivery tools.

Tools (Collecting and Delivering Intelligence)

• Tabbloid – Tabbloid is a service presented by HP (presumably in an effort to encourage increased printer cartridge use) that will turn any RSS feed into a periodic PDF document with almost no effort at all.
• PDFtoWord – This site will convert any PDF to a Word document. It does a pretty good job and is a great service to use if you have bulk conversions to do, especially if you’re away from your copy of Acrobat.
• Readability – This browser applet removes all ads or frames from a busy social media website, allowing the user to focus instead on the content. Using a tool like this reduces clutter on the page and frees up the reader to concentrate on the article or post.
• Dapp Factory (“RSSification”) – Dapp Factory provides an indispensable tool to “RSSify” any HTML website. Using patented technology, the site identifies the “posts” or portion of the page to track for changes or updates. It will then create either an RSS feed or a widget for use, at absolutely no cost.
• FeedMyInbox – FeedMyInbox is for users who are not quite comfortable with RSS feeds and still prefer to have content delivered to their email inbox.
• Google Reader Group Feeds – Where raw research or data is needed, it is sometimes useful to create grouped feeds and public pages of carefully selected content for your CI users (other attorneys, your clients, etc.) allowing them the ability to subscribe, review and share the feed posts in real time.

Real-Time Search

Real-time search, and real-time identification of potential clients, is a hot topic in social media right now. Twitter search is conducted in real time and many twitter applications and related sites allow for real-time trend analysis. (i.e. Monitter) Additionally, FriendFeed recently expanded its real-time updates to its search functionality, allowing for real-time search results in one continuous stream. “FriendFeed is a service which, instead of layering a meta-network on top of all your other social networks, will create a news feed incorporating them all much like the Facebook news feed.” (via CrunchBase). Researchers are just beginning to explore the value of real-time search to CI and business development activities, but my hopes are high that these new tools will continue to increase our efficiency and effectiveness in using social media.

Many thanks to Tyson for the opportunity to contribute to this outstanding blog. For more information, please see my July article, “Social Media Tools for Law Firm Competitive Intelligence” in the technology issue of the Texas Bar Journal and connect with me on twitter or LinkedIn.

Wow. Now that is what I call one fine guest post. Now, let’s be clear from the outset; I hate the “Web 2.0″ moniker.  But I do recognize the organization of information and the means of communication are rapidly changing.  More significantly, access to information, including legal information, gets better and better every day.  As I posited in my 22tweets interview, I believe that while access to law and legal materials increases, the law itself and its processes become more complex.  In layman’s terms: lawyers aren’t going anywhere.  The real question is what role will lawyers play in a world where knowledge and information is so readily available, particularly in real-time?  That is one of the questions that I hope we can continue to address on this blog.

The Rainmaker Blog recently posted an article entitled: “Law Firm Marketing: 7 Tips on Finding Clients Through Formal Networking” and it is worth a read.  I’ll give you the seven tips but if you want the explanation of how to use them, why to use them, and why they are successful, you will have to go check out the Rainmaker Blog to learn the intricacies:

1. Join the right groups
2. Join elite groups
3. Use an “audio logo”
4. Remember your primary purpose
5. Ask open-ended questions
6. Be intentional in your follow-up
7. Track your efforts

[Explanations Here]. I only partially agree with their suggestions.  I think #1 and #2 are definitely important.  I question #3 and its effectiveness (depending on the practice you are trying to build).  I don’t find #4-#6 as particularly helpful; they are too general.  And I agree with #7.  But each one of these points is greatly enhanced when social media is added to the mix.  Your efforts will be easier and more effective.

Ultimately, running a successful law practice is like running a business.  You can market all day and all night but if you have a product that no one in the market wants or that is beat out by the competition, you’re marketing efforts will all be for naught.  The best law firm marketing comes from practicing good law that helps clients achieve their goals and satisfies their needs.

Counsel who represent employers have all come across glowing employee reviews that discuss, at length, the superior qualities and work ethic of an employee who, within weeks of the review, is fired for poor performance or insubordination.

As described in the National Law Journal’s article:

Plaintiffs’ lawyers, they fear, are scouring these sites, looking for evidence to dispute firings, as most LinkedIn recommendations are positive. So if a supervisor claims that an employee was let go due to performance problems but gave a rave review about him or her on LinkedIn — that, the lawyers stress, won’t look so good.

It is a valid point.  Employment lawyers and H.R. personnel are constantly instructing management and supervisors to conduct regular, accurate, performance reviews.  Reviews posted on LinkedIn need to be equally accurate.  A good practice employers might implement is to tell their supervisors and managers not to post reviews, positive or negative; according to Carolyn Plump, a partner at Philadelphia’s Mitts Milavec, as quoted in the National Law Journal:

Generally, my advice is that I think employers are often better served by merely stating dates of employment, positions with the company and salary, and staying away from much more because there are so many potential ramifications if they say something.

Of course, like most stories, this one has both sides.  The example cited by the National Law Journal is that of a supervisor who is constantly leaving negative reviews.  While a single negative review might be offered as evidence of discrimination, counsel for the management could offer evidence of all the other negative reviews to establish that the supervisor was not singling out a particular gender, race, or nationality.

So what is the conclusion?  It is the always the same conclusion.  Conduct regular, accurate, performance appraisals and enforce your existing policies indiscriminately.

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