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.

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Post of the Day — Manpower Employment Blawg

August 26, 2009

Today’s post of the day comes from Mark Toth’s Manpower Employment Blawg.  The post is entitled: “How Employers Use Social Media” and is based on the readily observable notion that “[m]ore and more employers are using social media to gather ‘intelligence’ on employees and potential candidates.”

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.


22 Tweets – Twitterviews of and for Attorneys

August 25, 2009

I am finally climbing out of several weeks of non-stop trial preparation; unfortunately (or fortunately depending on how you look at it), Twitter’s mantra of “140 characters or less” has not found its place in pretrial exchanges, jury instructions, motions in limine, or any other legal filing.  But enough excuses…

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:

Tyson Snow | tysonsnow@gmail.com
LinkedinFacebookWordpressTwitter


Social Media, Competitive Intelligence, and the Practice of Law

July 16, 2009

As we all learned during my epic interview with 22tweets, in addition to being a super-cool bmx-riding employment and intellectual property lawyer, I am a self styled tech geek.  I blame my mom; she is the one with the M.S. in Computer Science.  But I digress.

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.