Category Archives: LinkedIn

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Judge’s Use of Electronic Social Networking Media

Judge’s Use of Electronic Social Networking Media – ABA Formal Opinion 462:

A judge may participate in electronic social networking, but as with all social relationships and contacts, a judge must comply with relevant provisions of the Code of Judicial Conduct and avoid any conduct that would undermine the judge’s independence, integrity, or impartiality, or create an appearance of impropriety.“ 

aba-20427According to Formal Opinion 462 [PDF] of the American Bar Association,  published on February 21, 2013. Surely, this formal opinion, which refers to Electronic Social Media (“ESM”), has been in the works for a long time. It is, however, at odds with a recent Florida decision I previously discussed. In that case a Florida appellate court held that a judge should have recused himself because he was a Facebook “friend” of an attorney appearing in the matter: Lawyers & Judges: Be Careful Who You Friend.

Domville v. State, — So.3d —-, 2012 WL 3826764 (Fla. App. 2012).

As indicated in that post, the Florida Supreme Court was going to take up the issue but with this recent opinion from the ABA, it may now be moot. I imagine the Florida Supreme Court will cite to this opinion and rely on the relevant Rules of Judicial Conduct in acknowledging that social media “relationships” are not problematic so long as they do not undermine or bring into question the judge’s appearance of impartiality.

The formal “Judge’s Use of Electronic Social Networking Media” Opinion will likely clear up this issue that has previously been addressed in piecemeal fashion by various state bar organizations.

Here are a couple of comments from the Opinion I found interesting:

  • A judge who participates in ESM should be mindful of relevant provisions of the Model Code. For example, while sharing comments, photographs, and other information, a judge must keep in mind the requirements of Rule 1.2 that call upon the judge to act in a manner that promotes public confidence in the judiciary, as previously discussed.
  • The judge should not form relationships with persons or organizations that may violate Rule 2.4(C) by conveying an impression that these persons or organizations are in a position to influence the judge.
  • A judge who has an ESM connection with a lawyer or party who has a pending or impending matter before the court must evaluate that ESM connection to determine whether the judge should disclose the relationship prior to, or at the initial appearance of the person before the court.
  • [However] Because of the open and casual nature of ESM communication, a judge will seldom have an affirmative duty to disclose an ESM connection.
  • [But] a judge should disclose on the record information the judge believes the parties or their lawyers might reasonably consider relevant to a possible motion for disqualification even if the judge believes there is no basis for the disqualification.

The opinion goes on to discuss a judge’s use of social media in running a judicial campaign. I am adamantly opposed to judicial elections. So, if you live in a jurisdiction where you elect judges during election cycles or if you are a judge who has to campaign for your position, you can read the opinion to determine what you can and cannot do.

Free prize to anyone who sends me a transcript or an order / opinion that includes a judgment disclosing an ESM connection with one or more lawyers involved. I have numerous judges as social media friends. Maybe I can be the first!

The Importance of Legitimate LinkedIn Reviews

Corporate attorneys are advising supervisors and managers to be careful when posting overly-positive or potentially misleading employee endorsements on LinkedIn. The big concern is that crafty employee plaintiffs’ counsel will use LinkedIn reviews much in the same way that they currently use positive reviews found in the employee’s written file: to establish that their client was wrongfully discharged or fired as a result of discrimination.

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.

 

Social Media Policy for Employers – NLRB Says This One Works

You may have read that the NLRB recently released its third publication addressing social media policies and their “lawfulness” under the NLRA (specifically, whether the policy has a chilling effect on protected union activities such as concerted efforts related to complaining about work conditions, etc.). In what is styled as the: “Acting General Counsel releases report on employer social media policies,” the NLRB has taken yet another step to bring itself to the forefront of social media policy related issues.

You may also know that I am in the throws of a two-week jury trial and have not had much time to post recently. I have some fairly strong opinions about the NLRB’s latest publication. But that is for another post. I already link to several resources where you can find form or sample social media policies for employers. Well, now the NLRB has given its stamp of approval to one (shocking, I know). While I let my emotions subside over the NLRB’s stance on social media policies in general, consider the following, which the NLRB approved in its entirety (yes, I realize I am a little late to the game with this post):

***
Social Media Policy

Updated: May 4, 2012
At [Employer], we understand that social media can be a fun and rewarding way to share your life and opinions with family, friends and co-workers around the world. However, use of social media also presents certain risks and carries with it certain responsibilities. To assist you in making responsible decisions about your use of social media, we have established these guidelines for appropriate use of social media.

This policy applies to all associates who work for [Employer], or one of its subsidiary companies in the United States ([Employer]). Managers and supervisors should use the supplemental Social Media Management Guidelines for additional guidance in administering the policy.

GUIDELINES
In the rapidly expanding world of electronic communication, social media can mean many things. Social media includes all means of communicating or posting  information or content of any sort on the Internet, including to your own or someone else’s web log or blog, journal or diary, personal web site, social networking or affinity web site, web bulletin board or a chat room, whether or not associated or affiliated with [Employer], as well as any other form of electronic communication.

The same principles and guidelines found in [Employer] policies and three basic beliefs apply to your activities online. Ultimately, you are solely responsible for what you post online. Before creating online content, consider some of the risks and rewards that are involved. Keep in mind that any of your conduct that adversely affects your job performance, the performance of fellow associates or otherwise adversely affects members, customers, suppliers, people who work on behalf of [Employer] or [Employer’s] legitimate business interests may result in disciplinary action up to and including termination.

Know and follow the rules
Carefully read these guidelines, the [Employer] Statement of Ethics Policy, the [Employer] Information Policy and the Discrimination & Harassment Prevention Policy, and ensure your postings are consistent with these policies. Inappropriate postings that may include discriminatory remarks, harassment, and threats of violence or similar inappropriate or unlawful conduct will not be tolerated and may subject you to disciplinary action up to and including termination.

Be respectful
Always be fair and courteous to fellow associates, customers, members, suppliers or people who work on behalf of [Employer]. Also, keep in mind that you are more likely to resolved work-related complaints by speaking directly with your co-workers or by utilizing our Open Door Policy than by posting complaints to a social media outlet. Nevertheless, if you decide to post complaints or criticism, avoid using statements, photographs, video or audio that reasonably could be viewed as malicious, obscene, threatening or intimidating, that disparage customers, members, associates or suppliers, or that might constitute harassment or bullying.

Examples of such conduct might include offensive posts meant to intentionally harm someone’s reputation or posts that could contribute to a hostile work environment on the basis of race, sex, disability, religion or any other status protected by law or company policy.

Be honest and accurate
Make sure you are always honest and accurate when posting information or news, and if you make a mistake, correct it quickly. Be open about any previous posts you have altered. Remember that the Internet archives almost everything; therefore, even deleted postings can be searched. Never post any information or rumors that you know to be false about [Employer], fellow associates, members, customers, suppliers, people working on behalf of [Employer] or competitors.

Post only appropriate and respectful content

  • Maintain the confidentiality of [Employer] trade secrets and private or confidential information. Trades secrets may include information regarding the development of systems, processes, products, know-how and technology. Do not post internal reports, policies, procedures or other internal business-related confidential communications.
  • Respect financial disclosure laws. It is illegal to communicate or give a “tip” on inside information to others so that they may buy or sell stocks or securities. Such online conduct may also violate the Insider Trading Policy.
  • Do not create a link from your blog, website or other social networking site to a [Employer] website without identifying yourself as a [Employer] associate.
  • Express only your personal opinions. Never represent yourself as a spokesperson for [Employer]. If [Employer] is a subject of the content you are creating, be clear and open about the fact that you are an associate and make it clear that your views do not represent those of [Employer], fellow associates, members, customers, suppliers or people working on behalf of [Employer]. If you do publish a blog or post online related to the work you do or subjects associated with [Employer], make it clear that you are not speaking on behalf of [Employer]. It is best to include a disclaimer such as “The postings on this site are my own and do not necessarily reflect the views of [Employer].”

Using social media at work
Refrain from using social media while on work time or on equipment we provide, unless it is work-related as authorized by your manager or consistent with the Company Equipment Policy. Do not use [Employer] email addresses to register on social networks, blogs or other online tools utilized for personal use.
Retaliation is prohibited [Employer] prohibits taking negative action against any associate for reporting a possible deviation from this policy or for cooperating in an investigation. Any associate who retaliates against another associate for reporting a possible deviation from this policy or for cooperating in an investigation will be subject to disciplinary action, up to and including termination.

Media contacts
Associates should not speak to the media on [Employer’s] behalf without contacting the Corporate Affairs Department. All media inquiries should be directed to them.
For more information If you have questions or need further guidance, please contact your HR representative.

***

And there you have it. A valid, enforceable social media policy from the NLRB. Stay tuned for my scathing remarks on the remainder of MEMORANDUM OM 12-59 and its criticism of basically every social media policy currently in existence. Once trial is over, I will let you know how I really feel about the NLRB’s position on social media governance and employer rights.

But, until then, hopefully this post will help raise some compliance issues that you can address and implement.

JDSupra’s “Social Media in the Workplace: Lawyers Weigh In…”

I tweeted about this fantastic resource earlier but I think it warrants its own blog entry. Many of you may not be familiar with JDSupra:

  • For Business Professionals: A free, daily source of news, business insights, and legal analysis from lawyers and law firms.
  • For Law Firms: The leading platform to increase visibility by distributing your legal content online.

I am a big fan of the site and try to contribute frequently. (You can see my profile at: http://www.jdsupra.com/profile/tysonsnow/.) For those who are unfamiliar with this legal-specific social media / sharing site, you should definitely check it out. Among the numerous features available, the site will incorporate directly with LinkedIn so you can share your documents and newsletters across both platforms with nothing more than a click.

Even more valuable are the numerous RSS feeds, specifically tailored to practice areas. If nothing else, you need to check out the RSS feeds / Twitter lists that are available. The immense amount of legal information (from some of the biggest, most respected law firms in the world, as well as solo practitioners who are consistently proving the effectiveness of their tactics). Fire up Google Reader or your favorite RSS Aggregator and start getting timely, frequent updates and basically any practice area you can imagine.

Ultimately, however, this post focuses on a resource I stumbled across as a result of Adrian Lurssen, a JDSupra co-founder, and a friend of mine since JDSupra launched. (You should definitely follow him at @AdrianLurssen.) 

But here is what you really need to be aware of:

JDSupra’s Small Business Report, published on April 10/11, 2012. The focus of this issue is: “Social Media in the Workplace: Lawyers Weigh In…” Go ahead and bookmark this now. Seriously. It is one of the best resources regarding the intersection of social media and employment law. This Report includes cites to numerous publications, all of which contain great information. A sampling:

eWorkplace Policies – Social-Media, Privacy & Internet-Security (Fenwick & West): Impressive, 129-page publication covering workplace technology issues of the day: “Given the mobility of electronic information, the stakes keep getting higher. Employees have access to, and are the gatekeepers of, trade secrets and other sensitive and confidential information. There are now many more ways that key information can be compromised, lost or stolen…” Read on>>

Federal Courts Determine That Social Networking Accounts Can Contain Trade Secrets (Wilson Sonsini): “As more businesses take advantage of social networking sites to build their brands and expand their marketing efforts, the question arises: can such promotional tools include protectable trade secrets? In at least some circumstances they can, according to two federal courts considering misappropriation cases involving MySpace and Twitter accounts…” Read on>>

Socially Aware: The Social Media Law Update — Vol. 3, Issue 2 April 2012 (Morrison & Foerster): “The FTC has not yet publicly addressed this issue, but we think that it could challenge an advertiser’s failure to disclose the consideration received in exchange for an endorsement conveyed by a ‘like.’ Any disclosure that the FTC would seek to prescribe in connection with “likes” displayed within the Facebook platform would most likely have to be built into Facebook’s “like” feature itself – something that is not within advertisers’ direct control…” Read on>>

Employers Must Update Their Social Media Policies (White & Case): “One of the main points underscored by the second [NLRB] report is that ‘[e]mployer policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees.’ The NLRA permits union and non-union employees who are not “supervisors” to engage in concerted action for their mutual aid and protection, including discussing their terms and conditions of employment. Such discussions are increasingly taking place on social media such as Facebook, Twitter and the like…” Read on>>

Second Verse: Worse Than the First! (McNees Wallace & Nurick): “We have discussed this many times before in the last year, but it is worth repeating: now is the time to review and narrowly tailor your policies to ensure compliance with rapidly-developing [NLRB] case law. With carefully crafted policies, you can still protect the your organization’s reputation and intellectual property; enforce attendance and harassment policies; and do so, without infringing on employees’ right to engage in protected concerted activity…” Read on>>

Regulate Employee Technology Use Without Becoming a Target (Lane Powell): “Contrary to popular belief, private sector employees do not have a constitutional right to ‘free speech’ in the workplace. Many employees do, however, have the right under Section 7 of the National Labor Relations Act (NLRA) to engage in ‘concerted activities for the purpose of … mutual aid or protection.’ While the NLRA does not protect actions taken solely on an employee’s own behalf, it does protect actions taken with or on behalf of at least one other employee, or on the authority of other employees, when those activities relate to the terms and conditions of their employment…” Read on>>

Password Protected – Proposed Social Media Privacy Legislation (Sheppard Mullin): “…a handful of states have drafted legislation seeking to outlaw what some consider to be an invasion of privacy. Lawmakers in Illinois, Maryland, and California have proposed legislation that would prohibit employers from requiring that current or prospective employees provide or disclose any user names, passwords, or other ways of accessing a personal online account. State lawmakers from Connecticut and New Jersey are considering drafting similar legislation, as is the United States Senate…” Read on>>

If you are an employment lawyer, general counsel, an employer, or just someone who is interested in the impact that social media is having on the workplace, you need to check out this compendium. In a relatively short period of time, you will be well versed in nearly all significant social media issues as they relate to employment law and employees.

The only negative about the Report is that there is nothing from me included in it (haha). I’ll forgive Adrian for that. But seriously, check this out. It is well worth your time. Feel free to browse my profile and the articles / posts I have uploaded in order to familiarize yourself with the site; big firms are using it, small firms and solos are using it, and you should be too. This Social Media in the Workplace Report is a perfect example of why:

View Tyson B. SnowOf the “social” resources available to lawyers, this is one of the best. I’ve been using it since it launched and will continue to do so in the future. And I would love to hear your thoughts and experiences with the site and how it has helped your practice, your marketing, and your overall success. It can be a little overwhelming at first but check out the Report (for social media issues) and check out the site for whatever needs you may have.

(For what it is worth, I do not receive any special benefits or perks from JDSupra; my opinions are based on the fact that this site rocks.)

Marketing Your New Firm Without a Firm Website

A while back, I wrote an article about marketing my new firm, Mumford West & Snow LLC, despite the fact that we didn’t have a “real” website. (I’m not sure Mumford West & Snow LLC has a real website at this point–but that is nothing more than an aside.)

Just recently, my partners and I got together with the partners of two other firms in Salt Lake City. After several discussions, we reached a conclusion: merger. In an anouncement of sorts, Rawson & Goff and Wasatch Advocates have merged with Mumford West & Snow to form: Mumford Rawson & Bates LLC. (And don’t worry, I’m still a partner–and I founding one at that–I just don’t get my name on the letterhead.)

But suddenly I face the same dilemma that confronted me when we started up Mumford West & Snow LLC. We are in the process of getting a website up and running but, in the meantime, how should I start marketing the new/merged firm? This question reminded me of a post I made back when Mumford West was just out of the incubator. Here are some refresher tips that I plan on implementing over the next few days (while we wait for our awesome new site to hit the Interwebs).

Beginning in January (more or less), we started Mumford West & Snow, LLC. Now, if you visit the link to our website, you’ll quickly notice that we really don’t have one. On the priority list of starting a new firm, I guess the firm website ended up fairly low.

Side Note: This was probably a poor decision.

But the past is the past. The point of this post is to discuss how I have been able to market the new firm without a website. Initially, a good firm website is essential to all firms. It provides clients and potential clients with information they need to evaluate whether your background and experience fits their needs and whether it is worth contacting you. This is particularly true when it comes to referrals, and even more true when referrals are given multiple firms / lawyers to evaluate.

While my new firm has been “settling in” (finalizing the firm name, marketing materials, logos, looking at bringing in some other attorneys, etc.), we have been waiting on creating a website. A lot goes into making a quality site and it isn’t something you want to have to repeat several times.

But we’re not completely in the dark. First of all, the firms that merged with us still have their websites up and running (as do we) and with phone numbers ported over, we (hopefully) are not missing many calls / inquiries. More important, at least for my practice, is my presence on Avvo.comLinkedIn and Twitter (as well as Martindale and Facebook). Those “social” sites have picked up a lot of the marketing slack that normally would result from starting a firm without any place to send potential clients. For example, I can still point potential clients to publications and areas of expertise (even if they aren’t listed on my “firm” website):

http://www.socialmediaesq.com/about-2/

Ah yes, the power of the independent blog.I have been able to market myself and my firm through LinkedIn connections and a network of people that were willing to recommend both my abilities and me. I can point to my Twitter presence as an illustration of my efforts and my knowledge of the current state of the law and my ability to stay on top of the latest developments, particularly developments that may affect clients’ businesses or lawsuits.

One of my favorite sites (disclaimer: I am a guest blogger for them) is Avvo.com. As you can tell, I spend a lot of time managing my reputation on that site and contributing to the community:



I have been able to use Facebook to keep in touch with clients I consider friends. Most surprising, I have actually found several new clients through Facebook connections. All of them came through friends of friends who needed some legal advice or wanted to discuss some issues and things continued to progress from there (who knew Facebook chat could actually be productive). All of this without a website–the key component in establishing your firm in the legal marketplace.

The take-away: Have a website. Make it good. Update it frequently. That is where your potential clients are going to go first. But don’t assume that spending thousands of dollars on a killer website is the only solution. Content, connections, and a big footprint among the legal community (and the consumers associated with that community) are an important solution. This blog, my Avvo / Twitter / LinkedIn / Facebook accounts, and long-time presence in the social media world are proof of that. I have continued to successfully market and build a firm without the traditional “key” marketing component of a website. As the Washington Post recently pointed out, more and more, practitioners are seeing social media as a client development tool.

Make sure you are using all the tools that are available to you! How have you used social media as an alternative to your website marketing?