The Social Media Guide for Lawyers v. 2.0 is hot off the presses. The Guide serves as a practical resource for how lawyers and law firms can use social media to practically, ethically, and responsibly promote their practice. I had the pleasure of co-authoring the Guide with the esteemed members of the 2010-11 Meritas Leadership Institute. 

The first edition of the Guide served as a “Social Media 101” for lawyers. It featured a “Best Practices Guide” on how law firms and individual lawyers can use social media to add value and generate business, provided step-by- step instructions for effectively using the “Big Three”—LinkedIn, Facebook, and Twitter—and included sample social media policies for law firms as they established parameters for social media use within their firms. We have incorporated the majority of that text within the second edition for those just diving into the social media pool.

Version 2.0 elevates lawyers and law firms to the second level of social media use: how to use social media to effectively promote their practice. It shows lawyers and law firms how to harness social media to their advantage by integrating “traditional” media with these new technologies to further expand visibility and exposure. As with the first edition, the goal is not to convince lawyers that social media is the only tool for business development, but rather to demonstrate how social media can serve as yet another tool in a lawyer’s marketing toolbox. Accordingly, version 2.0 of the Guide features:

• A list of Facebook’s new features, including Timeline and the new privacy settings,
• Step-by-step guides for creating and using LinkedIn Groups and Twitter Lists, and
• Tips for effectively using social media to share “traditional” marketing materials.

We hope lawyers and law firms find Version 2.0 of the Guide to be a helpful resource to navigate the sea of social media marketing. Many professionals outside the legal industry have also found the Guide applicable in their profession. We are always happy to receive feedback as we plan to update the Guide annually to address new innovations that can assist lawyers leverage their marketing on social media.

Earlier this week, I summarized recent federal district court decisions addressing whether social media accounts can be considered protectable trade secrets.  In each of these cases, a former employees retained the login credentials for their employers’ business social media accounts, refused to turn over the credentials, and used the information and friends list in connection with their new employment and to the detriment of their former employer.  Each court determined that the plaintiffs alleged sufficient facts to state a claim that their social media accounts were trade secrets.

While these decisions illustrate a potential remedy for the theft of social media information, prevention is much more efficient (and less costly) method of protecting social media information. Careful planning to protect a company’s social media presence and its business connections can save time and money in litigating against a former employee’s theft of social media information and credentials. In the article Are employer social networking accounts protectable trade secrets?, Kara Maciel and Matthew Sorensen provide the following suggestions for protecting this valuable information:

• Employers should ensure that they maintain a log of their social media account login credentials and that the log is appropriately updated.

• Require employees who establish and maintain such accounts on behalf of the company to enter agreements that provide that the accounts and their login credentials are the sole property of the company.

• Departing employees should be interviewed in connection with their exit to ensure that all company social media login credentials to which they had access have been returned.

Maciel and Sorensen also explain that in the event that an employee takes the login credentials for the employer’s social media accounts when he or she leaves the company, it is essential for the employer to take prompt action to recover the information as delay can result in the loss of legal protections for the accounts and any connections that they hold.

An ounce of prevention is truly worth the effort and expense of a litigation cure. Employers should consider including a provision within their existing social media policies or employment documents to prevent the unlawful use of their social media information from their current and former employees. 

Social media has become an increasingly important tool for businesses to market their products and services. As the use of social media in business continues to grow, companies will face new challenges with respect to the protection of their confidential information and business goodwill. One of those potential challenges is protecting valuable social media information as trade secrets.

Consider this scenario: An employee creates or manages a social media sites for their employer. The employee is privy to the user name and password credentials in order to access and operates the site on behalf of the employer to share information, interact with users, and obtain new “friends” for the company. The employer and employee gain valuable competitive information through the site’s unique list of friends, along with their personal information and their preferences.  Following a resignation or termination, the former employee retains the login credentials for their employers’ business social media accounts, refuses to turn over the credentials, and uses the information and friends list in connection with their new employment.  Would the employer have the ability to protect their social media information as a trade secret?

In the article Are employer social networking accounts protectable trade secrets?, Kara Maciel and Matthew Sorensen analyze several recent federal district court decisions addressing whether social media accounts can be considered protectable trade secrets. In each of the reported decisions, the court determined that the plaintiffs alleged sufficient facts to state a claim that their social media accounts were trade secrets. Factors the courts considered in reaching these decisions included:

• The significant negative consequences on the employer’s ability to effectively compete and market their products and services.

• The list of “friends” and other information could only be access through password protection.

• The “friend” connections for social media pages were more than just lists of potential customers, they also provided personal information about the “friends” and their preferences.

• The lists of “friends” could not be duplicated without a substantial amount of effort and expense.

• In one instance, the former employee had entered an agreement in which she had agreed that any work she created or developed during her employment would be the property of the company.

Maciel and Sorensen note that the courts did not find that the plaintiffs had established that their social media accounts were trade secrets, but rather held that they had alleged sufficient facts to state a claim that those accounts were trade secrets. The question of whether the employers will be able to prove the facts necessary to prevail on their claims was left open for determination at an evidentiary hearing or trial.

Trade secrets are one of many emerging areas where social media is affecting the law in unique ways. Unlike traditional websites, a social media site’s list of “friends,” followers, or connections and their corresponding personal information arms employers, companies, and social media users with unique access to valuable customer information.  On Thursday, I will share the authors’ advice on how employers and other social media users can protect their social media information and hopefully avoid the situation described above in the future. 

Social media plays an important role in marketing for attorneys. Social networks such as Facebook, professional networks such as LinkedIn, and blogging sites such as Twitter provide attorneys with easily accessible avenues to publish, share, and comment on the law, politics, and everyday life. As more attorneys turn to social media for their personal and professional use, law firm social media policies are becoming essential.

In the most recent addition of Law Practice Magazine, the American Bar Association (“ABA”) recognizes that many law firms struggle with creating policy for the use of social media. The ABA suggests the following guidelines to consider when preparing a policy appropriate for your firm:

• All firms should develop a social media policy that encourages the use of these new and emerging tools in innovative ways. Get input from all stakeholders and participants by establishing a committee of your rainmaking lawyers, senior managers, IT experts, marketers, and members of Gen Y to devise your specific firm strategy.
• For each new technology, draft general guidelines on what information lawyers may share online, including considerations on how the communication reflects upon you and your colleagues, how faithfully it represents your clients’ interests, and the implications of making this information public.
• Your law firm brand is important. So involve your marketing staff throughout the process, because it is its responsibility to promote, protect and enhance the integrity of your brand.
• Seasoned bloggers should be trusted to click and submit. Junior contributors should have their work read by one other editor before it goes live. Any more filters than that and your firm’s communications may lag.

On Tuesday, I summarized The Social Media Guide for Lawyers on this blog. The ABA Law Practice Magazine featured the Guide as a useful social media resource.  I co-authored the Guide with members of the 2010-11 Meritas Leadership Institute Class.  The Guide addresses significant challenges with social media, including ethical issues, time management/productivity, and provides sample firm social media policies that are in-line with nearly all of the ABA’s suggested guidelines discussed in the article linked above.

As a member of the 2010-11 Meritas Leadership Institute class, I had the pleasure of working with a select group of talented attorneys from across the world to investigate and analyze the role of social media in the practice of law. As part of our year long investigation, we prepared The Social Media Guide for Lawyers.  The Guide addresses significant challenges with social media, including ethical issues, time management/productivity, and offers sample firm social media policies that address the following subjects:

Almost every major consumer product now invites customers to follow its product on Facebook or Twitter – but the explosion of social media can be a double-edged sword for businesses, warns Karen L. Stevenson of Buchalter Nemer on behalf of the ABA’s Business Law Section.

When consumer complaints go viral, companies may find it hard to regain control of the message about their products. The near-universal access to social-networking media requires that companies and their legal counsel be proactive in evaluating current policies and developing strategies that allow their company to take advantage of the benefits of social media, and effectively navigate the special challenges that come with it.

Best practices for managing legal issues and making effective use of social networking for your business include: (1) implementing a written policy on social media usage for employees and business units; (2) monitoring compliance with the policy; (3) be consistent in responding to policy violations; (4) clearly distinguishing rules for personal versus business use of social media that bears the company brand, trademarks, service marks, logos and product images; and (5) conducting periodic audits of your company’s social media postings to maintain standards and gather customer feedback.

I had the pleasure of co-authoring the Social Media Guide for Lawyers along with the 2010-11 Meritas Leadership Institute that includes two sample policies for governing social media useful for employees and firms.