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An ever changing policy on using social media

“The reality is that people are going to use social media.”

So more than two years ago, the 65-attorney firm of Meyer, Suozzi, English & Klein took the position “that we were going to be tuned in to social media to promote business development,” says Frederick J. Esposito, Jr.,CLM, CFO and director of administration at the firm’s New York City office.

And with that decision came the task of setting standards for using it.

At that time, there were very few guides for the firm to follow, he says. The only applicable information was the rules of ethics regarding advertising. So he researched the benefits and risks of social media, gave a seminar on the findings to the attorneys, and began to develop the policy.

The attorney/client relation risk

The policy begins with use of social media.

One of the main concerns, Esposito says, was the risk of unwittingly creating an attorney-client relationship.

The policy therefore starts with a rule that when a prospect contacts an attorney via social media, the attorney must respond by saying no more than to call the firm directly. No other information can be given at that point.

Along with that, the policy prohibits the attorneys from giving opinions or legal advice online to prospects as that too can imply a relationship.

More still, when the attorneys have media contact with a prospect, they must add a disclaimer of “this is not to be construed as legal advice.”

Another social media concern was confidentiality, so the guides say that if a client sends the attorney legal questions via social media, the attorney again has to respond by telling that person to call.

There are guides too for handling unsolicited confidential information that comes via social media. And that happens, Esposito says. “It’s not uncommon for a client to pour his heart out” to the attorney about the circumstances of a case.

When confidential information comes in that way, the attorney must report it immediately to the managing attorney.

No casual job references

A somewhat new issue with social media is the fact that it’s often used to solicit job references for current and former employees.

The firm’s rule is that no one can give references but must refer the request to the HR department. References need to go through hiring, he says, “not on LinkedIn.”

Besides the risk of EEOC violations, if a reference turns out to be inaccurate, “the firm is on the hook.”

The language of advertising

Advertising was also a concern.

When an attorney posts a professional profile on sites such as LinkedIn, there is risk that the information could be construed as business solicitation.

The requirement, therefore, is that before a profile or blog can be posted, it has to be approved by the advertising committee. In addition, blogs cannot carry legal advice, express a position on a legal issue, or express opinions on controversial topics.

Neither can the attorneys refer to themselves as experts in any legal area. Everything posted has to be factual.

There’s a backup for the gray areas. The firm has a professional responsibility committee, and the attorneys contact that group when they have concerns or questions about posting something.

Professional conduct

Professional media conduct is also addressed.

The policy emphasizes that both attorneys and staff “are responsible for what they post” on any site and must comply with the firm’s general policy for professional conduct.

“They must use care and diligence” to avoid posting confidential or proprietary information and attacking or insulting another person.

In general, Esposito says, everyone must exhibit the same common courtesy online as is required in the office.

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