First Employers, Now Bar Associations…

September 1, 2009

We have previously discussed the growing trend among employers to utilize social media sites such as Facebook, MySpace, and Twitter to evaluate and investigate both applicants and current employees.  As social media continues to proliferate among nearly all age groups and through all socio-economic strata, this “fact-finding” approach by employers (and friends and neighbors) will become more and more popular.  Case and point: the Florida Bar Examiners recently adopted a rule that will allow the examiners to review social media profiles of certain bar applicants as part of the “Character and Fitness” review.

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.


Lawyers Turning Away From Twitter?

July 3, 2009

The Law.com Legal Blog Watch has been doing an excellent job of covering stories about lawyers who despise Twitter.  Okay, “despise” might be a mischaracterization.  They have posted blogs by Larry Bodine on why lawyers should not use Twitter and more recently, on Tom McLain’s departure from Twitter.  To its credit, Law.com has also blogged in favor of Twitter marketing via hyper-popular Adrian Dayton’s blawg review.

The Social Media Lawyer wants to weigh in: Don’t buy the hype — on either side.

Bodine and McLain are correct.  Twitter will not build a law practice.  Just like buying a stack of fancy looking business cards, leasing some fancy new office space, or “hanging up a shingle” won’t build a law practice.  But the current discussion of Twitter as a marketing tool is too narrow (and often misunderstood).  For example, Bodine states:

After months of using Twitter, I’ve learned that it is a shouting post for relentless self-promoters, a dumping ground for press releases and advertising, an ego-driven competition to amass followers, and a target for computer-automated Tweets.

Wow.  That sounds a lot like the same problems that come along with advertising in phone books or on billboards.  I  disagree with Bodine’s claim that Twitter cannot be used for business development.  The underlying principle of social media is to connect people who share some sort of commonality.  Those people are more likely to turn to each other in their decision making processes.  In our business, having a big network, especially a big network that trusts you and frequently benefits from our advice, is invaluable.

McLain’s approach is more reasonable.  He doesn’t outright criticize Twitter as a marketing tool.  Rather, he states:

A fair assessment of my own marketing practices is that my priorities have been wrong and I was spending too much time on Twitter and not enough on higher ranking methods.

And in all fairness, everyone should read McLain’s response (which can be found below), which explains the purpose for his infamous “tweet” and provides a much better and more thorough explanation of McLain’s thoughts on Twitter marketing than can be found on the infamous Law.com blog post.

That said, it still strikes me as odd that the concept of Twitter marketing can be completely written off with a straight face.  Good lawyers know that a good law practice is built — and has always been built — based on good legal work and good results.  Law firm marketing, outside the P.I. world, focuses on highlighting your specialties and the unique characteristics that you bring to the table.  When was the last time someone retained Kirkland, Skadden, or Cravath from a phone book ad?  Never.  (On a side note, I think Quinn Emanuel’s “Justice is Blind” campaign is clever and probably effective).

For firm lawyers, at least, Twitter is not about building a practice; it is about sustaining a practice.  Twitter, like blogs, like newsletters, like updates, like all those other things you send out to your clients, simply helps you share your wares.  It is a showcase.  A much classier showcase than the back of a phone book.  As numerous law firms have already noticed, Twitter is a fast, easy, and efficient way of proclaiming their success and their expertise.  This is good marketing, not an “an ego-driven competition to amass followers,” as Bodine would have you believe.  Check out these names:

Fulbright & Jaworski
McDermott Will & Emery
Weil Gotshal & Manges
Greenberg Traurig

And other major players are waiting in the wings. According to @LawyerKM, here are some of the firms making their Twitter presence known:

Those, my friends, are some heavy hitters.  They aren’t “active” yet and it is possible that the firms don’t intend to use the Twitter feeds.  But they are there none the less.

Now, it is true that Twitter is a new technology, in the process of developing, and it is most certainly not an end-all-be-all to lawyer marketing.  But to simply discount it as a marketing method is ridiculous.  Especially in a time when clients want to know who their attorneys are, the types of people they will be working with, and what unique characteristics and abilities their counselors bring to the table.  Trust me lawyers; clients will use Twitter to compare law firms in the same way that they are currently using Martindale-Hubbell and LinkedIn.

Twitter is a client facilitator.  Other uses may develop over time but there are plenty of opportunities out there already.  We are lawyers; we practice law; we market so that we can practice law.  Twitter is only a small part of a marketing plan that is even a smaller part of building a successful legal practice.  But Twitter is a factor in that plan and while there may be some people who disagree, but those people are wrong.  Don’t worry, this site will contain many more articles about how social media is helping practicing and firm lawyers achieve success.

UPDATE: 7/3/2009:

Seyfarth Shaw LLP definitely has a Twitter presence.  Check out the comments and follow them at @seyfarthshawLLP – http://twitter.com/seyfarthshawLLP (Mark, thinks for the heads-up!)

Haynes and Boone LLP is on board too: @haynesboone – http://twitter.com/haynesboone

–Tyson
http://twitter.com/tysonsnow (@tysonsnow)
http://linkedin.com/in/tysonsnow


Review: Social Networking for the Legal Profession

June 27, 2009

The Internet is a great resource.  It allows people with what would otherwise be unheard-voices express their opinions, thoughts, and contributions to the collective discussion that is currently taking place throughout the United States and the World at large (look no further than the controversy over the Iranian Elections to see proof of that).

One drawback is, of course, that certain people proclaim to be authoritative on subjects they may not be authoritative on (disclaimer: I claim to be authoritative on nothing).  A possible example of this is the publication of Social Networking for the Legal Profession (“Social Networking”).  The title certainly is catchy.  And, hey, show me a lawyer who isn’t looking for ways to develop business and I’ll show you a lawyer who has retired (or who has been elected or appointed as a judge).

The problem with Social Networking (the book, not the concept) is that it does not really seem to offer any novel information or approaches.  The official spiel reports (as nearly all of us already know):

Now, we are proud to announce the release what is a major new report, published in association with Ark Group, entitled Social Networking for the Legal Profession, In the report, Lee Bryant and I look at ways in which legal professionals are exploiting social networking for business, both internally for operations and communication, and externally as part of their marketing and business development efforts.

Plenty of buzzwords: exploiting social networking, increasing operations and communications, and marketing as well as business developments.  Certainly, each of these goals is worthy of any attorney.  But I’m not sure that Social Networking for the Legal Profession is any better at assisting people in these pursuits than much of the freely available information online.  A quick Google or Bing search should give you a lot of information that you might be looking for.

As with all publications such as  Social Networking, I have significant questions, especially when I am asked to pay for them.  Here are some of the claims the authors will attempt to discuss: (#) what social networking means; (#) using online social networks; (#) policy and governance issues around social networking adoption; and; (#) future social networking trends and their impact on the legal profession.  I’m fairly certain that I can find good answers to all of these questions for free among friends, colleagues, and Twitter-buddies.

Don’t get me wrong; it is great to see these discussions taking place and, more particularly, to see big firms such as Allen & Overy and Latham Watkins becoming involved.  Clients deserve more information and involvement and we should all be seeking to facilitate it.  We are in teh business, after all, of representing clients.  However, as we all know, this universe is shifting on a weekly, if not daily basis.

The resident expert for Social Networking, Penny Edwards, is described as follows: “Penny is an enterprise social computing consultant at Headshift, where she leads the user analysis, engagement, adoption and community building elements of projects with legal and professional services firms.”  Not exactly a resume that I would look for if I were trying to hire a law firm marketing manager. But hey, I’m just a young associate; what do I know.

As social media in the law develops and, as we all play a part in it, I hope that no one book or convention will control how it is implemented and used.  We have already posted the following three articles (free access I might add):

We also recently posted a detailed story about JDSupra and how that website is changing the way biglaw is down, how the legal landscape is viewed, and who has access to the information necessary to make legal decisions in their lives.  We hope you have time to check it out: Social Media Legal Spotlight: JDSupra / JDScoop.

It is through constantly developing and revising articles and websites such as these, as well as judicial opinions defining the parameters of how social media can be used in litigation and the investigation processes that will determine how social media will affectually affect all of us in law. Personally, I would not invest heavily in “books” or “treaties” on the subject matter. If it isn’t readily available online, contact me, and I will find it for you.  Trust me, it is out there.

In the meantime, check out some of these legal heavyweights on Twitter; they should be able to help:

http://twitter.com/tysonsnow
http://twitter.com/LeeRosen
http://twitter.com/constructionlaw
http://twitter.com/AdvertisingLaw
http://twitter.com/SmallFirm
http://twitter.com/justia
http://twitter.com/StephKimbro
http://twitter.com/tweetlaw

A complete review can be found over at JDScoop, but that previous list should keep you busy!  And don’t forget to add me: @tysonsnow

Now, we are proud to announce the release what is a major new report, published in association with Ark Group, entitled Social Networking for the Legal Profession,


Tweeting About Law Practice – Best Of Edition…

May 20, 2009

Great e-Book by Matthew Homann (of the the [non]billable hour fame): “Thinking About Law Practice in 140 Characters or Less” – The best 100 legal tweets according to Matthew.  You should definitely give it a look if you get a chance.

Matthew’s blog is one of the better legal blogs around.  It comes highly recommended by me and many others.  For those of you who are unfamiliar with Matthew and his blog, he styles it as follows:

Matthew Homann is a lawyer, mediator, blogger and entrepreneur who’s an innovative and passionate thinker about changing the practice of law in ways that benefit both lawyers and clients.Matthew Homann is a lawyer, mediator, blogger and entrepreneur who’s an innovative and passionate thinker about changing the practice of law in ways that benefit both lawyers and clients.

Get on the subscription list or add the RSS feed to your Google Reader.  You’ll be a better lawyer for it.