A Practical Guide to Social Media for Corporate Counsel

1. A Practical Guide to Social Media for Corporate Counsel Thursday, June 5, 2014

2. Session Goals • Examination of social media and how it applies to legal professionals • Evolving ethical and legal considerations • Case study application of social media to key drivers in the business and practice of law • Best practice knowledge and planning guide for using social media in the legal profession

3. Professional networking & social media It’s all about connecting online

4. Social Connecting & Online Professional Networking Differences Social connecting focuses on fun, friends and family sharing online Online professional networking helps business professionals find each other, interact, collaborate, and share information essential to achieve a business objective • Virtual networks are today’s digital business cards • Examples of online professional networks include: • LinkedIn (www.linkedin.com) All types of professionals • Martindale-Hubbell Connected (www.martindale.com/connected) Legal professionals • Sermo (www.sermo.com) Physicians

5. Why You Should Care: Social Media’s Footprint • Social network and blogging sites are now the fourth most popular activity on the Internet • ‘Member Communities’ now reach over 5 percentage points more of the Internet population than it did a year ago – twice the growth rate of other sectors. • People under 18 years old are making up less of the social network and blogging audience, whereas the 50+ age group are accounting for more of the audience. Source: Global Faces and Networked Places A Nielsen report on Social Networking’s New Global Footprint, March 2009

6. Counsels’ Use of Online Social Networks Is Expanding Rapidly 2008 2009 Are You A Member of an Online Social Network? % Yes % Yes Age Question: Are you a member of an online social network such as LinkedIn, Plaxo, Facebook, Xing or MySpace? 6 N CC: 710 OC: 764 • Both Corporate and Outside Counsel are significantly more likely to report being a member of an online social network this year as compared to last year • Approximately three quarters of counsel now report being a member of such a network • Growth in online network use is seen across all age groups Leader Networks (c) 2009 6

7. Lawyers Are Significantly More Interested in a Private Legal Network 2008 2009 Response by Role % Yes Age N CC: 710 OC: 764 Question: Would you be interested in joining an online professional network designed specifically for lawyers? 7 24% increase in corporate counsel interest; 18% increase in interest in private practice lawyers Also growth in “No Interest” suggesting counsel are more educated on these networks and are taking a position Growing trend in 2009: Counsel are beginning to join legal-only professional networks There has been an Increase in the percent interested across all age groups Leader Networks (c) 2009 7 NOTE: Response Options Changed in 2009 from Yes/No/Don’t Know to Yes/No/Already Belong

8. Corporate Counsel Low Costs And Increased Visibility Among Peers as Primary Reasons to Network Online Corporate Counsel Note: Item names have been shortened for display purposes N CC: 710 OC: 764 Question: What do you think are the top advantages of participating in an online legal professional network? Select up to three. 8 Leader Networks (c) 2009 8

9. The Social Media Landscape Source: http://lgnewmedia.net/blog/wp-content/uploads/2007/05/bubblus-social-media.jpg

10. Example of Digital Channels for Lawyers Reputation Aggregators Blogs and Online News Professional Networks Social Networks

11. Primary Professional Networking Activities for Lawyers Utilizing Online Legal Business Tools • Preferred provider management • Integrated search • Client ratings

12. Is Social Networking “Ethical?” • 3 Primary Categories of activities ethics rules apply to: • Communication: ABA Model Rules Rule of Professional Conduct 7.1 prohibits false or misleading communication about the lawyer or his services • How lawyers present themselves and their capabilities via their profiles & online interactivity could trigger this rule • Solicitation: the ABA's model rule 7.3 prohibits, among other things, real-time electronic contact to solicit professional employment from a prospective client… • Does participating in forums, blogs and other communication rise to that activity when there is no overt solicitation? Or is it just an extension of traditional networking? • Advertisement: ABA Model rule 7.2regulates lawyer advertising. • Are LinkedIn “testimonials” advertisements under the rule? (ie California prohibits unless such communication also contains an express disclaimer) • States are widely varied in their advertising rules Source: Mind the Ethics of Online Networking, By C.C. Holland, Special to Law.com, November 6, 2007

13. Ethics Violation: Pursuing Private Data in Pursuit of Litigation • Proceed with caution before attempting to access a social networking profile or other on-line forum that is password protected or otherwise restricted • Philadelphia Bar Association’sProfessional Guidance Committee found it would be unethical if an attorney who is not on the user’s “friends list,” were to ask a third party to send a friend request to the user. • User was a litigation witness seeking and advisory opinion; “friending” would have been done to obtain information that the attorney might use to impeach the witness. • Ethics violation would be found because of use of “deception.” • The attorney was advised that omission would be a “highly material fact” • purposeful concealment of a fact from the witness for the purpose of inducing the witness to allow access

14. Can Employers Monitor Employees Social Networking Activities? • By using the Internet to research employees, employers can breach Privacy, Equal Protection, Financial Fair Practice, among other rules • Employer obligations extend to the realms of social media: • Blakey v. Continental Airlines, Civ. No. 93-2194(WGB), 1997 U.S. Dist. LEXIS 22068 (D.N.J. March 24, 1997), (a female pilot filed hostile work environment and defamation claims against Continental Airlines based on derogatory comments posted about her on another pilot's electronic bulletin (operated by a third-party service provider). • Airline had a duty to take effective measures to stop co-employee harassment when it knew, or had reason to know, that such harassment was occurring in a workplace-related setting • Simonetti v. Delta Air Lines Inc., No. 5-cv-2321 (N.D. Ga. Sept. 7, 2005), Ellen Simonetti kept a blog called "Diary of a Flight Attendant," on which she posted a range of photographs including one showing her uniform partly unbuttoned, exposing her bra. Upon seeing the picture, Delta fired her. • Simonetti sued on a theory of sexual discrimination, alleging that Delta Air Lines did not punish male flight attendants who might have posted similarly inappropriate material on their own blogs Source Analysis: Social Networks and Blogs, Managing Chatter, By Gregory I. Rasin and Ariane R. Buglione, New York Law Journal, July 29, 2009

15. Is Posted Content Discoverable? • From employees posting content on sites using company computers? • Does your company have a publicized policy that employees have no privacy interest in any materials created or accessed on company computers? • If so, an employer generally can review with impunity an employee's activities on the company's computer system. • Law more vague if there’s no employment relationship; courts will look to reasonable expectation of privacy? • Users logically lack a legitimate expectation of privacy in the materials intended for publication or public posting (Steven Guest et al. v. Simon L. Leis et al., 255 F.3d 325 (6th Cir. 2001). • Limits of a person's reasonable expectation of privacy at the point where content on a Web page is shared with other people Beye v. Horizon,, 06-Civ.-5337 (D. N.J. filed 2006), and Foley v. Horizon, 06-Civ.-6219 (D. N.J. filed Dec. 26, 2006) • Must also look to privacy statements on networking site Source: Are Social Networking Sites Discoverable?, Ronald J. Levine and Susan L. Swatski-Lebson, Product Liability Law & Strategy, November 13, 2008

16. Social Networking and EU Data Privacy • On June 12, 2009 the Article 29 Data Protection Working Party adopted an opinion for social networking sites (SNS) (including operators outside EU) – to meet the requirements of EU data protection law.  See WP 163, “Opinion 5/2009 on online social networking.” • Warnings to users about the privacy risks when uploading information • Requirements about voluntariness of uploading sensitive data (i.e., ethnic data) • Limitations on storage of 3rd party data • Limitations on how, by whom and to whom invitations to Connect are sent; • Provisions for retention of data for users banned from the site • Retention of personal data when account goes inactive or is deleted • Application of EU Data Protection laws even if SNS is outside the EU    • SNS User falls under EU Data Protection Act when primary puprose of use is commercial Source: http://ec.europa.eu/justice_home/fsj/privacy/docs/wpdocs/2009/wp163_en.pdf

17. Primary Professional Networking Activities for Lawyers 17

18. Maintaining a Positive Online Reputation Career Builder did a study (Sept. 2008) on how employers and hiring managers use social media to vet candidates. Top factors that influenced their hiring decision included: • 48% - candidate’s background supported their qualifications • 43% - candidate had great communication skills • 40% - candidate was a good fit for the company’s culture • 36% - candidate’s site conveyed a professional image • 31% - candidate had great references posted about them by others • 30% - candidate showed a wide range of interests • 29% - candidate received awards and accolades • 24% - candidate’s profile was creative Keep your digital persona professional and appropriate Clean up any digital dirt on personal sites

19. Listening: Monitoring the Online Channels This is the New Media – So Get on Board! Find blogs that you want to read regularly and follow those blogs • Visit them regularly (manually) or • Use a web browser to follow that RSS feed or • Subscribe by email • Follow bloggers & journalists through RSS • Search SlideShare and YouTube and join groups of like-minded professionals Twitter: Listen and when appropriate, connect

20. Listening: Reputation Management • Discover your online identity • Research yourself, your firm or company and your area of practice • http://www.google.com/alerts • Fix or edit any incorrect information about you or your firm. • Twitter • If you find yourself quoted, mentioned or commented about on a blog or article, use comments area to respond – right away Activity + Credibility = Visibility

21. Twitter and it’s Legal Implications • What is Twitter? • is a free social networking and micro-blogging service that enables its users to send and read messages known as tweets. • Senders can restrict delivery to those in their circle of friends or, by default, allow open access. • Users can send and receive tweets via the Twitter website, Short Message Service (SMS) or external applications. Source: Wikipedia

22. Twitter and Its Legal Implications • Risks of revealing privileged information • Messages that appear to contain legal advice may create an attorney-client relationship or be interpreted as a solicitation for services • Best practices include: • Establishing protocols: (ie only discuss issues in broad generalities) • Restricting group of tweet recipients • Issue periodic notices of conditions of your tweets (ie “legal advice not intended.”) Look Who’s Talking, Legal Implications of Twitter, Social Networking Technology, By Steven C. Bennett, NYSBA Journal, May 2009, http://www.nysba.org/AM/Template.cfm?Section=Bar_i_Journal_i_&CONTENTID=26780&TEMPLATE=/CM/ContentDisplay.cfm

23. The Importance of Listening • The conversations are happening whether you are a part of them or not. • Opportunities await those who listen. • Enormousrisks await those who don’t.

24. Primary Professional Networking Activities for Lawyers 24

25. Factors for Choosing a Professional Network Brand: Seek sites with a strong industry footprints to ensure longevity Safety and security: • Participate in networks that you trust, and which provide sufficient security and authentication to make professional users feel safe • This is a key benefit to private, members-only and legal-focused networks Global membership: One of the great benefits of online networking is its global reach. Seek out international communities for business Diversity of features: Your Law 2.0 needs will change over time. Find a network that offers many different ways to participate Richness of conversation: As knowledge sharing is key to the success of a professional network, look for active discussions and comments that offer idea exchange. Size: Look for a critical mass of members in your specialty to achieve your networking goals

26. Collaborating: Vetting a Professional Network Be cautious when: • The site allows legal advice to be offered • The site’s Terms and Conditions do not respect your privacy, or will sell or rent your contact information • Company or entity creating the site is vague or unidentified • Site allows solicitation and spamming • There is no authentication process following a registration to ensure member identity • Site allows anonymity • Lacks robust privacy and communications settings

27. Effective Social Media Profiles She is reachable and accessible Effective photo and contact information Expertise and area of practice is clear and well defined Credible authority established “She has spoken on 6 continents about the rule of law, women in the law, and the future of the law.” Links to others = well connected Interests give personal feeling Activity and frequency of use establishes commitment 27

28. Example: How a Professional Network Profile Is Used “We have a new matter in an unfamiliar Jurisdiction. Who do I hire?” • GC searches Google and surfaces Sam’s LinkedIn profile based on a key word search. Looks interesting – but want to find trusted referral from a legal colleague • GC reviews Sam’s Connected profile and sees Sam has extensive experience in the legal matter under consideration, has written articles on the subject • Favorable Martindale Client Reviews submitted on Sam • GC sees that a colleagues is connected Sam • GC calls or emails colleague to get inside scoop on Sam • GC is pleased he has found the right lawyer, and hires Sam to handle the matter • Because GC adds Sam to Preferred provider list, alerting other internal team members of relationship

29. Connecting Online Call it “the Virtual Handshake” – Best practices include: • Asking permission to connect is encouraged • Individually decide if it is appropriate to initiate a connection • Always write a personal email – do not use an email template • If a person doesn’t respond, generally do not send a reminder • Thank people for connecting to you • If invited to connect, it’s OK to decline or ignore (they’re not notified)

30. Using Groups to Segment Your Audience • Find “Relevant” Colleagues • Common interests • Narrow peer groups into smaller, more focused clusters • Enables “deep dives” into subject matter with trusted colleagues • Groups are Focused & Intimate • Introduce yourself to the group and offer brief background • Participate frequently and offer ideas, questions and insights • Be helpful and pro-active 30

31. Primary Professional Networking Activities for Lawyers 31

32. LinkedIn and Connected Online Channels to Raise Your Profile Use all aspects of the profile opportunity to demonstrate your thought-leadership so when others look you up, you stand apart • “What are you working on” feature (LinkedIn) • Use to promote or market ideas or activities • Drive traffic to your blog and presentations • Blog, Slideshare, comments feed • Articles you’ve written • Important published decisions • Organizations and committees • Pro bono work • Charitable work & community involvement 32

33. Setting Your User Name: Claiming Your Name & Brand • New setting allows for friendly URLs to your Facebook page: www.facebook.com/USERNAME • Opportunity to showcase your profile on business cards, CVs etc. • Claim your company brand or trademark to prevent cybersquatting • Open question remains regarding how Facebook will resolve disputes

34. Recourse if Someone Steals Your Identity? • Someone creates a profile assuming the identity of an individual or company to draw attention to the profile (ex/ Barack Obama on Linkedin) • No specific action for account jacking exists, but you can seek redress under the following: • Terms of Service Violation – most account jacking can be remedied by contacting the service provider • Defamation – using social network to make damaging false statements (causation and damages may be hard to prove) • Fraud – must prove with particularity deceit of account jacker for personal gain or to cause damage to you • False Light – publishing information about someone that a reasonable person would find highly offensive with knowledge or reckless disregard that the information is untrue or would create false perceptions of the victim Source: BlawgIT, Brett Trout, http://blawgit.com/2008/12/13/social-media-accountjacking/comment-page-1/

35. Primary Professional Networking Activities for Lawyers

36. Network Updates Reveal Risk & Opportunity Automated news feeds on your connections and communities can reveal actionable information

37. Job Search: Connections at Prospective Employers Leverage your connections to gain an inside edge when job seeking or hiring

38. References & Recommendations LinkedIn lets you add recommendations from friends & colleagues to your profile

39. Reference Search Tools Leverage your network when reference checking

40. Suggested Connections to Help Expand Your Network Suggested connections help lawyers find lawyers with shared backgrounds.

41. The Network Effect: Source Trusted Referrals Find a trusted colleague who knows the lawyer you’re researching.

42. Client Review Ratings User-generated Reviews provide members reliable lawyer recommendations from other corporate counsel clients who have actually used an attorney’s services

43. Blending the Boundaries Between People, Content & Relationships Martindale-Hubbell Connected Outside Counsel Experts Corporate Counsel Experts Research, Opinions, Regulations Communities Maritime Contract Law Articles, News, Analysis, Wikis Discussion Forums, Blogs, Q&A Relationship Connections How do I find the precise people, content and communities relevant to me? Connected will leverage LexisNexis’ expansive taxonomy to connect lawyers with each other and content to address the precise issue requiring resolution

44. Preferred Provider & Referral Management Tools Who uses these providers? The member can link to in-house colleagues using that lawyer, discussions, Ratings and more.. Which lawyers from our preferred list do my colleagues use? Connected generates a preferred provider directory, connecting departments with the lawyers they use

45. Ethics, Guidelines & Best Practices Be transparent and clear in identity and intention Adhere to ethical rules and guidelines governing counsel YOYOW - You own your own words Be responsive & trustworthy Finish what you start Value and create thought leadership

46. Policy Considerations • Review existing policies In light of the company’s orientation towards social media: • Including privacy, confidentiality, email use, legal holds, and employee ethics • Form a Social Media Team to guide executives on social media policy • Team should monitor web traffic about the company • Report adverse communications to someone with authority to act as soon as possible. • Training programs to disseminate the policy and to remind employees of existing policies. • In-house online self study programs, presentations, or outsourced to consultants.

47. Template Policy • For consideration in a Social Media Policy • Company’s social media position • Existing policies • Use of email addresses, logos, trademarks, brands • “Voice” of company contributions • Disclaimers • Stakeholder considerations • Intellectual Property Rights • Template policy found on Martindale Connected “Social Media Policy Group” (www.martindale.com/connected) • Group Created by James Wong, ACC So. Cal Member & General Counsel of UMA Enterprises • Share social media best practices with other legal departments

48. 8 Minute Social Media Game Plan For an effective Social Media-savvy lawyer... • Spends 5 minutes a day scanning RSS feeds, blogs and emails • 1 second to check reputation alert, topic or company key word alert • 5 minutes to respond-- if need be -- to a blog post or social media entry • Send email to author of great article – invites to connect if she responds • Logs into professional network every few days for about 8-10 minutes • Connects to 1-3 people every few visits • Writes a personalized email to 1-2 connections • Scans forums or blogs • Comments briefly or posts a message • Once or twice a month (at least) – writes or co-writes a blog entry • Twitters new blog post • Posts blog on network profile • RSS sends blog entry automatically to all subscribers • Responds to comments

49. New: Legal Department Networking Initiative • Professional Networking Consulting Services & Implementation Support • Custom Inhouse Group(s) on Martindale Connected • Team Onboarding: Team Member Access to Broader Legal Online Community • Membership on Martindale Hubbell Connected Advisory Panel • Cost: $1100/day* • * (Services offered at no cost during pilot period. Offer ends 12/31/09.)

50. To Learn More: www.martindale.com/connected