Most social media sites are FREE to partakers, right? WELL, “free” may be cutting too fine an edge, because social media is not exactly free. Company losses from social media missteps and data security breaches can be translated to monetary costs 84% of the time, according to a 2011 survey from Symantec. The top costs were: lost productivity; lost revenue; loss of organization, customer, or employee data; and damage to a company’s brand reputation. Litigation costs, regulatory fines, and reduced stock price are also among the costs companies identified.

It’s a commonly accepted fact that anyone with a web site now has the legal liabilities of a publisher. Law firm web sites typically post a disclaimer and some even include a discussion of privacy issues for visitors. But social media is a different beast. Additional exposures are now available to law firms (and companies), also for free, compliments of your partners and your employees who distribute information to the public via third party websites; i.e. social networks, content sites, and et cetera.

This blog post attempts to start a discussion about insuring the entity and mitigating missteps.

Can I purchase “social media insurance?”

No. After a bit of digging, I haven’t found a stand-alone insurance product called Social Media Insurance—for law firms or for any type of business. For now, law firms and businesses will just have to find coverage, if they want it, within existing products. The key, according to experts, is to know where to look and what to look for.

Let’s start by identifying the most common types of social media risk and liability:

• Advertising liability
• Defamation
• Employer hiring/firing practices
• Copyright infringement
• Security breach
• Privacy breach
• Breach of trade secrets, statements, or other confidential information

According to the expert sources I spoke with, here is where you might find coverage:

• First Party Coverage under a general business policy (BOP)
• Errors and Omissions Coverage (E&O) under a professional liability policy
• A stand alone Cyber Liability policy
• Brand Impairment policy
• Employment Practices Liability (EPL) policy
• Media & Advertising liability policy
• Business Interruption Coverage policy

Across the board, the experts with whom I spoke to strongly suggested that law firms and businesses should review their current insurance coverage for clarification and confirmation that online activity is covered in both professional liability and general business policies.

Thanks to Brad Shear, Angela Elbert, Sonya Rosenberg, Neil Hughes, and Bob Stalker, I now have enough information to be dangerous. 

(Disclaimer: I am not a lawyer. I am not affiliated with any insurance products or agents. In fact, I don’t know beans about insurance and I only know enough about the law to fill an ice bucket—well, maybe a large cooler. Please do not consider my comments to be advice in any way. I’m just a “cub reporter” poking into Pandora’s box. Your stories and knowledgeable comments, however, are welcome!)

The General Business Insurance Policy

Brad Shear, Law Office of Bradley Shear, is an attorney with an active social media presence, blogging at Shear on Social Media Law since 2009, and whole lot more.

Brad told me that he has obtained written confirmation from his general business policy insurer that his blog, his Tweets, and his digital content are covered should any unforeseen mistake occur.

“If you are going on line, it is expected that as a professional you have certain responsibilities. Still, where social media channels are concerned, if it’s not spelled out in your business coverage policy as social media, you should get assurance that you, and your employees’ activities, are covered. This may be found under a rider related to electronic communications; i.e. email, websites, etc., but, it’s important to confirm specifically.”

He also mentioned that the most recent renewal of his policy required a much more lengthy questionnaire than in the past. Hmmm.

Media Coverage

Angela R. Elbert, a partner at Neal Gerber Eisenberg, Chicago, helps clients identify potential risks and helps them work through insurance coverage options as well as litigate complex insurance coverage disputes when necessary. While she hasn’t seen a lot of claims against law firms, yet, she told me that:

“At least every one I’ve looked at so far has enough risk there to include media liability to their coverage.”

She explained that, for example, defamation related to things you’re doing on the Internet or on your website—is sometimes, but not always, included in a media liability component of your E&O coverage. At a minimum, Ms. Elbert advises law firms to consider adding media coverage in their E&O policy, especially if they are active in social media.

Neil Hughes, President of Hub International Midwest, an insurance brokerage firm that specializes in developing custom insurance programs for law firms and other businesses echoed that advice:

“Law firms should review their current E&O policy to insure that electronic communications are covered—they probably are—but not all E&O policies are created equal.”

I asked if media coverage within an E&O policy might be channel specific, i.e. print vs. online, or other. Mr. Hughes suggested that it’s worth asking:

“A general malpractice policy could potentially have an exclusion for Internet related activity – especially if the insurer sold a stand-alone media product.”

 Privacy Coverage

According to Ms. Elbert, “privacy lawsuits are going like crazy.” One example she gave is the Zip Capture lawsuits being filed in California, involving merchants who ask for zip codes at the check out and subsequently may face liability for privacy breaches.

“[Coverage for] privacy breaches can be contained in E&O policy, D&O policy, general liability policy covering personal and advertising issues, or a stand-alone cyber policy. But, while there may be privacy coverage in one of those policies, many general liability insurers do not want to pay under that clause.”

Although a law firm isn’t in the “retail” category, per se, it would probably be wise to check out the fine print…you’re familiar with that, right?

Cyber Liability

The concept of cyber liability takes into account first- and third-party risks. The risk category includes privacy issues, the infringement of intellectual property, virus transmission, or any other serious trouble that may be passed from first to third parties via the web.

Mr. Hughes suggested that a stand-alone cyber liability policy might be redundant for the type of risks a law firm would face via social media activity primarily because confidential information breaches are typically covered in an E&O policy. However, he added that the decision deserves scrutiny and that every law firm’s activity and risk tolerance varies:

“While traditional insurance policies typically have not handled these emerging risks of cyber liability; i.e., hackers, theft of employee’s identity information, or theft of intellectual property, in recent years claims have increased and limited coverage under traditional policies has become available.”

Brand Impairment

Brand impairment coverage, typically a stand-alone policy for businesses that might have risks related to product recall, is built into some policies on the professionals’ side, I assume because it is rare. Still, brand impairment happens. While it does not typically fall into the liability bucket, if it happens via social media—very viral—there are sure to be huge expenses related to public relations and restoring good will.

CORRECTION: My apology to Ms. Elbert for incorrectly interpreting where one might find Brand Impairment Coverage. She emailed me this morning stating, “I don’t agree that there is coverage per se for brand damage. What may be included in a cyber policy is coverage for pr (public relations) responses to help reduce brand damage.” Ms. Elbert suggested that coverage under a first party property policy or a crisis management component under a cyber policy should protect against money you’re out because of brand damage related to a social media misstep.

Employment Practices

Sonya Rosenberg, an employment law attorney at Neal Gerber Eisenberg, Chicago, and frequent speaker on social media and employer/employee issues, suggested that an Employment Practices Liability (EPL) policy might be available in the right context.

“In lawsuits where information is sought and found on public social media profiles, i.e., pages, blogs, videos, etc., and are factored into failure-to-hire-claims they will likely fall under general discrimination laws.”

However, she went on to say that:

“Abuse cases are just starting to come out of the woodwork, and as always, the lawsuits trail the practical developments. But as far as lawyer and law firm conduct involved in employment lawsuits and social media, I’m not seeing a trend. The Stengart case in the New Jersey state court might be a related example. Stengart involves the production of emails in litigation, which came from an employee’s private personal email account.”

Mitigating Risk

An October 2011 report from law firm DLA Piper revealed that while social media is being embraced in the corporate world, the pace at which it is developing is such that organizations’ policies and procedures are struggling to keep up.

Their research found that 65 percent of employers responding actively encourage the use of social media for work related activities. Twenty-one percent have taken disciplinary proceedings because of information an employee displayed on a social media site about another individual and 31 percent because of information posted about their organization.

Despite this, the report found that only a small proportion (25%) of businesses had a stand-alone, dedicated social media policy, and less than half (43%) had a social media policy that existed alongside another, such as an IT or HR policy.

Source: Knowing Your Tweet From Your Trend: Keeping Pace With Social Media In The Workplace, Shifting Landscapes, Report 4.

Interesting, right?

The best defense is an offense: Have a social media policy and enforce it.

Ms. Rosenberg believes that an insurance policy alone is not enough. Law firms and companies need to proactively mitigate social media risk by doing the following:

• Have a social media policy,
• Educate active users in the details of what is in the policy and exactly what is expected of them,
• Include guidance on business appropriate behavior (younger employees may not know),
• Update the social media policy frequently as the medium evolves, and,
• Enforce your policy.

“To the extent an employer decides to issue a social media policy, they need to be willing to enforce the policy, including any disciplinary actions outlined in the policy,” said Rosenberg. “They should be enforcing and taking steps, if not, it’s a pointless policy. Are they actually doing it? Not in all cases. But those who have implemented them and want to be taken seriously need to enforce them.”

Bob Stalker, Senior Vice President at Hub International Midwest, said:

“Companies (law firms) that are being more proactive with policy, employee compliance agreements, and education generally see fewer claims. You can mitigate exposure by having good employee contracts.”

Mr. Shear also elaborated on the importance of enforcement:

“In general, I advise that if you have a policy you must enforce the policy, educate about the policy, and follow the policy. If you’re not going to abide by it, why bother. For firms who have a lot of people online, people need to know what to expect.”

He gave as an example of what not to do: ESPN (sports network)

ESPN revised its social media policy last August (2011) to include a clause that reporters must tweet all news through ESPN platforms (accounts). Within two weeks, an employee (a radio broadcaster) tweeted on an individual account breaking the news that Payton Manning’s injury was worse than reported—an obvious violation of the new policy. However…

“When ESPN found it they did not do anything,” said Mr. Shear. “When the next person violates the policy, they have no teeth.”

The Wrap.

The discussions generated during these interviews revealed many interesting details, as well as did my extended Internet research, that cannot be contained in a single blog post. I will revisit soon. (Subscribe to the VMO!) For now, I don’t think professional liability insurers are poised to threaten a shut down of social media engagement as a condition of coverage. I do, however, think we will see products surface in the near future. As Mr. Shear suggested to me:

“If and when the insurance industry develops specific product, my best guess is that we can look to how insurers treated online content for the last 15 years. Social media insurance products are likely to mirror those from the era (1994-95) when law firms first started hosting websites.”

Endnote:

Special thanks to Nathan Darling, Kim Perret and Betsi Roach of the Legal Marketing Association Task Force on Social Media Ethics for inciting me to dive into the subject! This post is truly an effort inspired by the LMA advocacy efforts. We can expect to hear more from the LMA on this topic and other law firm management related issues in the future.

If you have further questions, I encourage you to contact the experts directly.

Bradley S. Shear is the Founder and Managing Partner of the Law Office of Bradley S. Shear. Bradley is an internationally recognized attorney, consultant, speaker, and writer. He is the first private practice lawyer in the United States to work with a state government (State of Maryland) to draft social media law. His blog, Shear on Social Media Law is the first blog to focus on social media law and public policy issues and is syndicated by the publisher of The American Lawyer and The National Law Journal through its Law.com Blog Network. Bradley is an adjunct professor of sports management at The George Washington University and print, radio, and television news outlets regularly request his commentary and insight. He has testified in front of the Maryland House of Delegates, the Maryland Senate, and state administrative agencies on social media and digital law matters.

Angela R. Elbert counsels clients on complex risk management and insurance issues and helps them obtain the maximum recovery possible when claims arise. She focuses her practice on advising entities and boards of directors on a wide variety of risk management issues, including indemnification agreements, obtaining insurance with the most favorable terms available in the marketplace, financial insolvency concerns and insurance aspects of corporate transactions and other business contracts. She has significant experience in handling complex insurance coverage litigation, other commercial litigation, mediations and arbitrations, with an emphasis on representing policyholders in insurance coverage disputes nationwide involving virtually every line of insurance. Based upon interviews with her clients and peers, Angela has been described as a “leading light” whose “breadth of knowledge is matched only by her commendable work ethic,” reports Chambers USA, America’s Leading Lawyers for Business.

Sonya Rosenberg counsels and represents employers in various labor and employment-related matters. Her experience includes counseling employers through the many aspects of the employment relationship and representing employers in administrative proceedings and through various stages of litigation at the state, federal district and appellate court levels. Sonya has given multiple presentations and authored multiple articles on various employment-related topics, including discrimination, blogging in the workplace, social networking sites, non-compete agreements, workplace violence, conducting reductions in force and notable changes and developments in labor and employment law. Sonya is currently on the Board of ELIT (Executive Leaders In Transition), a professional network group dedicated to human resources and finance executives in transition.

Neil Hughes and Bob Stalker can be reached via Hub International Midwest.

Boarding a flight between Montreal and Miami yesterday I overheard a mother tell her son, who looked no more than 3-years-old, “Turn off your iPad.” She suggested, gently, that he take a nap until we were up in the air, at which time he could sign into the American Airlines’ (please don’t become United Airlines, service will suffer) wireless service and “play.”  I was immediately envious—I’m a digital junkie, lusting after the new iPad and couldn’t believe this 3-year-old kid (toddler?) had one! I don’t even own an iPad2—though simply an exercise in discipline because I can’t quite YET justify carrying around another device when the ones I have meet every need quite efficiently. (But if I won one in a raffle or a VMO fan would ship one to my door, I’d certainly accept the gift with gratitude!)

Still, as I looked around the economy class cabin, everywhere kids were tethered to some electronic device. We must face the fact: our kids are digital natives. They do not know life before the Internet and in many cases before mobile devices, which are now the literal center of their universe—even those as young as 3 years old! This WILL have an impact on how we deliver legal services in the next 10 years, maybe less as today’s teenagers, also digital natives, become entrepreneurs, inherit the family business or wealth, buy homes, pay taxes and more, and seek a different legal services model, yes?

The ABA Journal cover story this month, April 1, 2012 edition, profiled the “…Footprints of America’s Switched-on Lawyers.” Lots of interesting commentary, insight, and even techie confession in this article from folks like Richard Granat, Niki Black, Carol Elefant, and others.  I recommend reading it, after you finish reading this post, of course.   Then read Rik Myslewski’s, The Lifer column in this month’s Mac | Life magazine, “Take Time to UnPlug” for another piece of advice for those who still remember what it was like to listen to the sounds of silence or indulge in a face to face conversation!

DIGITAL DISRUPTION CONTINUES

The news here on this VMO post is that most of our kids today are completely programmed to easily adapt to evolving technology. When today’s adults are faced with the next disruptive version of the Internet, the Semantic Web, (coming soon to a connection near you, with lots of “scary” stuff that is sure to peak and freak any clear thinking adult’s privacy and security thresholds), our kids will take to it like fish to water.

They will likely not question a single sign on ID (that hackers could capture and do who knows what), and will likely readily embrace the concept of a “personal data locker” in the cloud. What’s that? Well, the personal data locker on the semantic web will be, for example:

1. “a portal to a world of custom-made products based on their personal ontology,”*
2. It will include a body scan, models of feet and hands, and even a biometric profile of how you move.
3. This data locker, containing your specifics, will enable suppliers to make or customize their product for you!
4. No more trudging through reviewer comments about size or fit of the jeans you’re longing to own on a retailer’s website!

According to this fascinating book, which I have been slogging through since 2010 because it is frankly mind-boggling, *Pull: The Power of the Semantic Web to Transform Your Business, David Siegel, November 2009, your ontology, the niche areas of your interest, will be stored in your “data locker” and will satisfy various kinds of semantically specified requirements, so it gets smarter and smarter in personal recommendations the more you feed it. Think Pandora or the new Google search engine. You will be able to add your “friends’” ontologies, with their permission of course, to your locker so recommendations can be semantically integrated with yours.

Your data locker will store your medical, tax, legal records and more, along with your social, physical, and educational records, and probably even an archive of who you voted for in every election. Your purchases, likes, dislikes, calendar, photos, groceries, friends, vacations, restaurant selections, repair bills—virtually EVERYTHING will be stored digitally on the Internet so it can retrieve and connect random bits of data to inform your next moves. And, if you believe what they are saying, it will make you life better, more efficient, and more customized—everyone will have a defacto personal assistant via the cloud. Despite the fact that we may be more vulnerable to nefarious activity, (or in some cases government interference), heck, we don’t have a choice, do we? The kids, our legacies, will embrace it and thus, while we are still around, we will be required to adapt–again! Don’t be caught sleeping may be apropos.

Digital Natives and LEGAL SERVICES

Legal services providers will have to face a new round of threats to discovery, confidentiality, pricing, delivery, and more… ARE WE READY? Digital natives, who know nothing other than transacting via the Internet, will demand that your services be available 24/7 and accessible via the net. Yes? No? Will the profession be forced to adapt? Can we envision this? Will the data locker be implemented while you’re still practicing and how will that look? Do you have plans in place? Are you watching this unfold or are you being proactive?

I think the “virtual” law firms, the lawyers that are adapting to technology, definitely have a head start. I’m not just talking social media for marketing, I’m suggesting this is a delivery and storage issue. After all, most courts have all their records digitized now and filing, researching, and more are all accomplished remotely. No more treks down to the courthouse to face a surly clerk and sort through paper files that result in paper cuts and disability claims.  Nope, records are available via the Internet and are being used  by paralegals and legal assistants as convenient and time saving developments. IT professionals are looking into the cloud for storage—are document storage facilities becoming extinct? And, proprietary software development companies, are they scared? Many are being forced to shift their business models in this new digital nation. The sky is falling…..

Social Media

Back on earth…following my most recent public speaking engagement at Legal IT 6.0 in Montreal – shout out to the event – it was amazing, one of the many astute attorneys attending the event came to me and commented on how refreshing it was to hear me propose that social media is not mandatory, but rather can be used as a complementary tool to our off-line business development and marketing activities. Seems, according to his observations, that many social media speakers are setting a tone of do-it-or-else-suffer-severe-consequences. This is never my approach. It has to make sense to the individual and be used in an appropriate context—at least for now.

BUT, I agree to a degree that ignoring the global marketplace found on the World Wide Web could delay progress for those who are in the transitional demographic—too young to retire in the next 10 years but too old to feel that the social web is the only means to new business.  For the digital natives…well, what else is there? Paper? Pencils? Crayons? Blocks? Globes? Balls? Roller skates? Hugs? Birds? Beaches? Bikes? Playgrounds? Nursery rhymes sung by a calming mother or father’s voice while falling off to sleep? Hmmm… Will that custom-fit pair of jeans be worth the exchanges? They may never know the difference…

Potential buyers got their first look at Facebook financials yesterday, which showed the company produced a $1 billion profit last year from $3.71 billion in revenues. The company derives 85% of those revenues from advertising, with the rest from social gaming and other fees. The initial public offering could value the social network between $75 billion and $100 billion, putting the company on track for one of the biggest U.S. stock-market debuts of all time.

Facebook’s membership growth has been staggering. The company said in its filing that it has 845 million users globally, up 39% from a year earlier.

Facebook takes pains to mention the importance of privacy, mentioning the word 35 times in the filing, and even listing its “privacy and sharing settings” as one of the ways the company creates value.

The number of ads delivered on the site grew 42% and the average price per ad grew 18% over 2011 from 2010, according to the filing.

The company attributed the improvement to a vast trove of information that allows marketers to “show their ads to a subset of our users based on demographic factors such as age, location, gender, education, work history, and specific interests that they have chosen to share with us on Facebook or by using the Like button around the web or on mobile devices.”

 (Wall Street Journal)

INVESTORS’ RISK

While all this is quite interesting data to me, there was one particular piece in the IPO filing that caught my attention:

As a matter of required disclosure, to caution investors against buying blindly, Facebook had to release a list of “risks” on the S-1 Registration Statement.

A quick review of those risks, which follows, made me think…this is a terrific exercise and one that law firms could benefit from—a REALLY HONEST assessment of their “risks.” 

SIDE BAR: A SWOT analysis completed during strategic planning—strengths, weaknesses, opportunities and threats—will likely get you to the answers, as I’m thinking threats could be substituted for “risks.” With one caveat: your list of threats cannot be unfounded nor cliché. I’ve seen many law firm SWOT reports, and I have to say that too many have made me wonder if they were just filling in the blanks or if they really knew or understood their actual market risks?

Now, if a law firm did plunge into a market risk assessment, what if instead of keeping risks hidden in the executive boardroom, what if that list was distributed among the firm’s stakeholders (not just partners but also employees whose careers are dependent upon the success of the law firm)? Couldn’t that help the firm’s best interest? After all, they are all investors at various levels and…they have ability and responsibility to protect the firm’s best interests from its risks. How can they do that if they don’t know what they are? Management? Do all your attorneys know? Is it practical to share that information with an associate who might be on his way out in another year and off to a competing law firm?

What do you think? Maybe not? Just saying…I think it would be of great benefit on several levels.

 Here is the list pulled from the Facebook SEC Form S-1 Registration Statement. Thanks to Brian Solis for pointing it out on his blog post of Feb 1, 2012.

FACEBOOK RISK FACTORS

Risks Related to Our Business and Industry

If we fail to retain existing users or add new users, or if our users decrease their level of engagement with Facebook, our revenue, financial results, and business may be significantly harmed.

The size of our user base and our users’ level of engagement are critical to our success. We had 845 million monthly active users (MAUs) as of December 31, 2011. Our financial performance has been and will continue to be significantly determined by our success in adding, retaining, and engaging active users. We anticipate that our active user growth rate will decline over time as the size of our active user base increases, and as we achieve higher market penetration rates. To the extent our active user growth rate slows, our business performance will become increasingly dependent on our ability to increase levels of user engagement in current and new markets. If people do not perceive our products to be useful, reliable, and trustworthy, we may not be able to attract or retain users or otherwise maintain or increase the frequency and duration of their engagement. A number of other social networking companies that achieved early popularity have since seen their active user bases or levels of engagement decline, in some cases precipitously. There is no guarantee that we will not experience a similar erosion of our active user base or engagement levels. A decrease in user retention, growth, or engagement could render Facebook less attractive to developers and advertisers, which may have a material and adverse impact on our revenue, business, financial condition, and results of operations. Any number of factors could potentially negatively affect user retention, growth, and engagement, including if:

1. users increasingly engage with competing products;
2. we fail to introduce new and improved products or if we introduce new products or services that are not favorably received;
3. we are unable to successfully balance our efforts to provide a compelling user experience with the decisions we make with respect to the frequency, prominence, and size of ads and other commercial content that we display;
4. we are unable to continue to develop products for mobile devices that users find engaging, that work with a variety of mobile operating systems and networks, and that achieve a high level of market acceptance;
5. there are changes in user sentiment about the quality or usefulness of our products or concerns related to privacy and sharing, safety, security, or other factors;
6. we are unable to manage and prioritize information to ensure users are presented with content that is interesting, useful, and relevant to them;
7. there are adverse changes in our products that are mandated by legislation, regulatory authorities, or litigation, including settlements or consent decrees;
8. technical or other problems prevent us from delivering our products in a rapid and reliable manner or otherwise affect the user experience;
9. we adopt policies or procedures related to areas such as sharing or user data that are perceived negatively by our users or the general public;
10. we fail to provide adequate customer service to users, developers, or advertisers;
11. we, our Platform developers, or other companies in our industry are the subject of adverse media reports or other negative publicity; or
12. our current or future products, such as the Facebook Platform, reduce user activity on Facebook by making it easier for our users to interact and share on third-party websites.

______________________________________________________________

As a bonus, here’s the open letter from Mark Zuckerberg, CEO, included in the S-1 filing. The Facebook mission statement:

LETTER FROM MARK ZUCKERBERG

Facebook was not originally created to be a company. It was built to accomplish a social mission — to make the world more open and connected.

We think it’s important that everyone who invests in Facebook understands what this mission means to us, how we make decisions and why we do the things we do. I will try to outline our approach in this letter.

At Facebook, we’re inspired by technologies that have revolutionized how people spread and consume information. We often talk about inventions like the printing press and the television — by simply making communication more efficient, they led to a complete transformation of many important parts of society. They gave more people a voice. They encouraged progress. They changed the way society was organized. They brought us closer together.

Today, our society has reached another tipping point. We live at a moment when the majority of people in the world have access to the internet or mobile phones — the raw tools necessary to start sharing what they’re thinking, feeling and doing with whomever they want. Facebook aspires to build the services that give people the power to share and help them once again transform many of our core institutions and industries.

There is a huge need and a huge opportunity to get everyone in the world connected, to give everyone a voice and to help transform society for the future. The scale of the technology and infrastructure that must be built is unprecedented, and we believe this is the most important problem we can focus on.

We hope to strengthen how people relate to each other.

Even if our mission sounds big, it starts small — with the relationship between two people.

Personal relationships are the fundamental unit of our society. Relationships are how we discover new ideas, understand our world and ultimately derive long-term happiness

At Facebook, we build tools to help people connect with the people they want and share what they want, and by doing this we are extending people’s capacity to build and maintain relationships.

People sharing more — even if just with their close friends or families — creates a more open culture and leads to a better understanding of the lives and perspectives of others. We believe that this creates a greater number of stronger relationships between people, and that it helps people get exposed to a greater number of diverse perspectives.

By helping people form these connections, we hope to rewire the way people spread and consume information. We think the world’s information infrastructure should resemble the social graph — a network built from the bottom up or peer-to-peer, rather than the monolithic, top-down structure that has existed to date. We also believe that giving people control over what they share is a fundamental principle of this rewiring.

We have already helped more than 800 million people map out more than 100 billion connections so far, and our goal is to help this rewiring accelerate.

We hope to improve how people connect to businesses and the economy.

We think a more open and connected world will help create a stronger economy with more authentic businesses that build better products and services.

As people share more, they have access to more opinions from the people they trust about the products and services they use. This makes it easier to discover the best products and improve the quality and efficiency of their lives.

Listening to a law firm administrator explain how he handles internally sensitive issues at his law firm over a business dinner one evening, I remarked, “You’re a benevolent dictator! Sounds like it’s working for you! Management by consensus may be an easier path, but it is a sure path to confusion, or worse, inaction, right?” He agreed, but added that it wasn’t for the weak of heart because it did not come easy. A few days later I was contacted by book publicist Kevin Small, requesting a review of an advance copy of a new book, The Benevolent Dictator, by Michael Feuer, co-founder of OfficeMax and founder of Max-Wellness. What a coincidence! I eagerly agreed and dove into the book with relish, hoping to glean some nuggets to be passed along to my clients and colleagues in the legal profession. I was not disappointed. I hope you’ll too find lots of encouragement and ideas. Then, share them with the readers of the VMO blog.

This book is a gem. There are practical lessons that we already know but will benefit from re-visiting and others that were entirely new to me. Here’s the short list of what this book has to offer:

• Always be prepared to turn to Plan B…and sometimes C and D.
• Learn how to make every dollar last
• Manage by the three P’s: Persistence, Perspiration, and Performance
• Pot stirring 101: The key to continuous reinvention
• How to put lightning back in the bottle again and again

One of my favorite chapters.

Anyone who has a role in launching ideas in their law firm will totally relate to Chapter Six: “GOYA—The only way to really test an idea.”

“You should… begin by undertaking a process in which I’m a big believer: GOYA, or, Get Off Your Ass. …Take that idea and start testing it. …Go to places where people shop and buy. Walk around and watch how they do it. You envision how your idea would make it better, easier, and faster for people to do something that they’re currently doing poorly, with difficulty, or slowly. You see if your concept has legs.”

Now, you might argue that in the law firm it’s not about shopping and buying. And I would counter: It is! Nothing will get you to the table quicker than if you truly understand how your clients (i.e, partners, management, bosses, etc.) work in order to get them to buy into a new idea.

Have you ever been on the line for a client’s success, been responsible to bring in a million dollars in revenue, or felt the demands on the one commodity lawyers have to sell—time? If not, before you present that new idea walk a mile in a lawyer’s shoes—it ain’t easy. How busy lawyers juggle multiple clients, stay up to date on the law, and find time to develop new business can be a herculean task! (Not to mention family, philanthropy and oh yeah, personal time.) A CEO, COO or CMO (Director, Administrator or manager–whatever your title) with an idea and only a vague concept of the impact the idea will have on the practicing lawyer is certain to be less effective. The Benevolent Dictator will inspire you!

When Communicating, Cut to the Chase.

“One size never fits all, and events must dictate your tactics. This means that as the boss, you must instinctively understand when to be an observer and when you must get your hands very dirty, very quickly—in order to survive, succeed, or excel.”

Assertions that start with a negative followed by a litany of unpleasant consequences will be counter productive. (Avoid being forced to focus only on the risk factors!)

“It’s certainly true that you must tell your team members what they need to know, not just what they want to hear. Sprinkling perfume on a smelly problem doesn’t make the fragrance better. …But, starting with statements like, ‘If we don’t increase sales in the next month, we might have to let go of many of you,’ or, ‘We either save money on expenses, or we go down the tubes’ …is counter productive.”

It’s common sense, but we get into bad habits. Feuer suggests that you can jump start acceptance by explaining the issue and the anticipated fix by using a logical, positive tone and focusing on the good rather than the bad. However….

“If some of your people ignored this first sweet-laced mandate, then home in on those who might need a trip to the woodshed to understand what you really meant. Target your second message to the noncompliant laggards with the old school, stronger-style message, as in, “What part of ‘no’ didn’t you understand? If all else fails…a ton of bricks will get the job done, too.”

Ah…the Benevolent Dictator! I love Feuer’s writing style and I think you will too. There’s great advice on handling crisis, growing your company (i.e. law firm), and gaining trust and respect from your employees (and your own bosses!). Seriously, I know I recommend a number of business books from time to time, but this one is a must read. Truly practical, sensible advice that everyone in the legal profession needs to read—lawyers, managing partners, marketing partners, administrators, COOs, IT, Human Resources, and of course CMOs!  Do yourself a favor. READ THIS BOOK. Then come back and drop a note about a nugget you found and share the wealth!

Michael Feuer co-founded OfficeMax in 1988, starting with one store and $20,000 of his own money. During a 16-year span, Feuer, as CEO, grew the company to almost 1,000 stores worldwide with annual sales of approximately $5 billion before selling this retail giant for almost $1.5 billion in December 2003. In 2010, Feuer launched another retail concept, Max-Wellness, a first of its kind chain featuring more than 7,000 products for head-to-toe care. Feuer serves on a number of corporate and philanthropic boards and is a frequent speaker on business, marketing and building entrepreneurial enterprises. “The Benevolent Dictator,” chronicles his step-by-step strategy to build business and create wealth. Published by John Wiley & Sons in late spring 2011.

ISBN: 978-1-1180-0391-6
Hardcover/US $24.95

Order from The Benevolent Dictator website @ $16.95.

How are you preparing to take your law firm into the “Social Business” era?  Perhaps this is the first time you’ve heard the term used?  Here’s a definition:

Social Businesses combine fully integrated sets of tools, channels, and processes with people that embrace and cultivate a spirit of collaboration and community throughout the organization—both internally and externally. It’s not B2C or B2B, it’s P2P – that’s People-to-People or Peer to Peer.

Wouldn’t it be great if you could fluently and seamlessly communicate and collaborate with people both inside and outside the law firm on your most important matters? Wouldn’t it be great to deliver such value to clients and in turn build even stronger internal relationships between every department, from HR to marketing, to time and billing and information technology? Then become a social business!

While you may already be accessing some of the more popular social media channels to reach out to the marketplace—maybe you’re using Facebook for employee and attorney recruiting, or you’re proactively managing your LinkedIn Company Page, have a “push” presence on Twitter and posted some educational videos on You Tube—there’s more involved in becoming a “social business.” You’re not a Social Business until all the moving parts integrate people, communications and work product to deliver a meaningful outcome. This is the one thing that truly distinguishes a social business model from a traditional business model—social integration for results.

Now, before you say “our law firm will never be a social business,” or start worrying that you’re already behind the curve, take a deep breath, relax, open your mind, and learn how you can become a social business.

Corporations Take the Lead.

As is usually the case, law firms aren’t going to be first. Corporations have already taken the lead in becoming social businesses—many have been in the social media space long before law firms even knew social media existed. They are integrating their social channels and moving human capital into place, getting closer to the mark. Granted, it’s a work in progress, or so it seems, as I’ve heard no report of anyone having perfected a formula yet, but they are getting close. And, I predict that it will be sooner rather than later that savvy clients will look for their service providers to join the revolution and become social businesses. Here are some case studies of social businesses from the IBM website.

Attributes of a Social Business

What are the attributes of a social business? An early adopter, IBM, weighs in about this topic on their website:

• A Social Business is engaged—deeply connecting people, including customers, employees, and partners, to be involved in productive, efficient ways.
• A Social Business is transparent—removing boundaries to information, experts and assets, helping people align every action to drive business results.
• A Social Business is nimble—speeding up business with information and insight to anticipate and address evolving opportunities.

I see glimpses of start-up law firms becoming social businesses. But wow! Can an established law firm become a social business? Maybe a better question is: What happens if they don’t? What happens when their best clients become social businesses and they are focused elsewhere?

Transitioning to Social Business

Michael Brito, Vice President of Social Media at Edelman Digital, believes that “…organizations cannot have effective, external conversations with consumers, unless they can have effective internal conversations first.” He prescribes “the three pillars of social business as the process and foundation with which businesses will transition into social businesses: People, Governance and Technology.

• Organizations begin humanizing business operations.
• Organizational models are formed to include social media.
• Organizational silos are torn down between internal teams.
• Governance models and social media policies are created.
• Social becomes an essential attribute of organizational cultural.”

More ideas from Michael’s forthcoming book, The Evolution of Social Business, can be found here. I especially like his diagram on slide #2.

Social Business Tool Box

Everything a social business does is focused on helping team members; business partners, colleagues and customers, solve business problems and be most effective. To do this, social businesses need tools that allow people to easily find and collaborate with colleagues, customers and partners, essentially increasing efficiency and efficacy. Those tools need to store, manage and deliver in real time all resources, people, information and channels so that work product can be easily accessed and shared from anywhere. [Hello cloud!]

To save you time, I did a little digging around to identify a few items a social [law firm] business might consider in setting up their social business toolbox.  Here are my top four.

1. Social CRM
2. White label, private social network (collaboration software or cloud computing)
3. Listening tool(s)
4. Web channels for distribution and brand exposure

Social CRM:

Traditional CRMs (Customer Relationship Management software) typically manage client details such as contact and marketing information.  For example, they track what newsletters and invitations go to whom, who knows who, and so forth. Much of what a social business does has a marketing play too—building the right human resources, gaining exposure for offerings, anticipating client needs, attending to important client details. But, a traditional CRM is not enough for a social business–they need social CRM. Social CRM moves beyond the straightforward, strategic tactics used to organize, automate and synchronize.  A social CRM provides innovative ways to interact with their customers and prospects by taking into account the new ways people communicate and interact via cloud, social media and social networking sites. Google+ is one new tool that is aiming for this market in a big way. Salesforce.com bought the social media monitoring service Radian6 last spring and is leaping ahead in social CRM strategy. Of course there are others. Read more here.

White Label Network:

A white label network is essentially an enterprise collaboration solution enabling personal and organizational effectiveness. One component of enterprise collaboration invokes social networking technology. This technology gives fast access to everyone in an individual’s professional network, including colleagues, clients and partners, enabling them to access and interact with the people, information and project materials they need to get their work done. These private networks facilitate communications among teams helping them work together and build stronger relationships across organizations. I’ve long been a proponent of private social networking technology for the law firm environment and do not believe enough firms are taking advantage of it.

No matter the size of your budget or size of the network you wish to create, there is something for everyone. If you’re looking for a software solution you might consider Microsoft Sharepoint or IBM Sametime.  For a more economical, web-based solution, one of my favorites right now is BloomFire. Follow this link to a description of nine other white label social networking solutions tested by TechCrunch. Or, for small firm or individual needs, check out Google’s Cloud Apps. It may be just the right fit when it comes to cloud collaboration. You might even opt to create a small, private discussion group on Facebook, which would meet the needs of certain lawyers who already have a presence and network on the site.

Listening Tools.

There is no substitution for a face-to-face client interview and I’m not even suggesting that social comes close to that kind of listening, however, social listening can provide insight into customer needs, competitive intelligence, and identification of prospective clients who have problems you can solve. Social listening will help you find and engage with customers. It will help you anticipate and meet their needs in ways that should differentiate you from the competition. At the very least, a simple social listening tool like Google Alerts can be used to track primary client names, companies, and issues. If you have a lot of listening to do and are willing to pay for this information, you could deploy a solution like Manzama. Manzama was created specifically for the listening needs of law firms. There are of course many others. Here is a wiki of 201 social media monitoring solutions.

Distribution and Exposure.

A social business needs a social public face. Luckily, we are in an era where content marketing is valued. There is no end to the types content law firms can create. But writing and distributing educational content to gain exposure is just one part of the equation. Social businesses go beyond pushing out press releases, white papers, and articles—they engage in the public dialogue. Dialogue in the social marketplace can build presence and alignment with valuable constituencies, including clients, prospects, referral sources, the media, politicians, and others—worldwide. Engagement in the social marketplace typically leads to greater business development opportunities and stronger relationships. Therefore, a social business will have a thoughtful and professional presence on websites like Facebook, Twitter, and LinkedIn. It will post useful content on blogs, SlideShare, and You Tube. And, I repeat, it will engage in the marketplace dialogue. This of course is the most time consuming and perhaps difficult piece of the social business model to integrate, but also the most necessary for proper exposure and positioning.

Social Media Integration.

There is no magic to setting up a social business system. There is, however, some magic involved in successfully removing organizational silos between internal teams and creating permission based governance models and policies that everyone can agree upon and live with. Ultimately, shifting the organizational culture to a distinctly social culture requires not only a bit of magic, but also leadership, consistency and an unwavering desire to use technology to create a stronger law firm.

Your turn; what do you think? Are we ready? How soon do you think we’ll see the first truly “social law firm”? Who will be first?  Is anyone even talking about social business in your firm? Is it too soon? Are any of your clients asking for a more social work model? If so, what are you going to do to make it happen?

If you’re looking for the latest “buzz” about social media ethics and professional responsibility for lawyers (and their employees), I highly recommend Jay Strother’s article, Just Being Social, published in the March/April edition of Legal Management, a publication of the Association of Legal Administrators.  In addition to offering an excellent primer on the issues, the article highlights the responses of legal marketing leaders and attorneys who share some terrific practical tips. This article would be of interest to anyone in law firm management, marketing, and human resources, as well as lawyers generally.

Download PDF ” Just Being Social”

[Disclaimer: I am quoted throughout the article]

Just Being Social | Article Excerpt

THE ABA ETHICS OPINION

As law firms’ use of the Internet evolves well into its second decade, websites’ inherent pitfalls and opportunities for legal organizations have crystallized. Late in 2010, the ABA Standing Committee on Ethics and Professional Responsibility addressed the problems law firm administrators, marketers and ethics attorneys had already wrestled. Formal Opinion 10-457 cites differences between Internet-based business development and its non-electronic predecessors:

• immediacy of access
• direct interaction with legal providers
• disclaimers
• depth of information available

Firm websites are much more than ads. They can be educational tools. They can house very real information. The opinion cites how problems can arise from website marketing and provides guidelines for how to avoid these issues. (Read the complete opinion on the ABA website. An additional resource is ABA’s Ethic SEARCH division. Search the ABA site for “Recent ethics opinion: Lawyer websites” by Peter Geraghty.)

“I can’t imagine why it took the ABA so long to issue this opinion,” [Ross] Fishman said. “The application of old-media ethics rules to the Internet and new media tools has been confounding law firm marketers for a long time. It allowed individual states to create their own conflicting rules and created more confusion than necessary.”

Indeed, some states are ahead of the bar – and their guidelines are even more restrictive, said the director of marketing and business development at Hunton & Williams in Washington, D.C., Kim A. Perret. “There’s a lot of frustration right now and it is going to take some discussion to get the right formula [for restrictions and policies],” said Perret, who is also a former president of the Legal Marketing Association. “Prospective clients want to get the information they need on the web, but protecting the firm from liability or ethical breeches may keep that from happening.” However, Perret thinks that – especially for corporate firms – there exists a sophisticated level of firm website user: They can discern among real information, marketing language and advertising.

But even if some states are more restrictive of web-based marketing and information, those state bar organizations may have the ability to more nimbly react to changes and new media. Many of these entities already had clear website guidelines. Now they are tackling the emerging tools that are causing legal administrators to fret: social media.

THE EXPOSURE

Regardless of their opinions about the timing and usefulness of the formal ABA Opinion, marketers and administrators agree that websites create a lot of gray ethical boundaries – and firms must be ready to address these issues. “This rule said to me that firms have to take every precaution,” said Navarre, who published the book Social.Lawyers: Transforming Business Development. “There is interaction and immediacy inherent in the web. Firm managers must ensure they are filtering the website through layers of protection.”

Websites themselves may be easier to keep under control. The real issues come from the new technologies. Practitioners are creating their own blogs. They are active on Twitter. They have LinkedIn and Facebook accounts that reflect their employer and profession. These media open up new challenges, ones that Navarre said require you to have really honest lawyers who tell the firm how they are using these tools. “Social media: That’s where the line gets a little fuzzy,” she said.

“When we interact online, are we providing legal advice? When someone reads an article online there is a disclaimer.” But Twitter posts and blogs are independent of the firm’s site. Navarre’s solution is to ensure that lawyers and staff know how to handle requests that come in via these media.

-end excerpt-

If you’re attending THE ALA ANNUAL CONFERENCE in Orlando Florida next month, I hope you’ll attend my SESSION, “IS THE MEDIUM THE MESSAGE? SOCIAL MEDIA AND MARKETING” (LI34) ON MAY 25.

Today a package of materials from a new client of mine arrived overnight, first AM delivery. The delivery surprised me and exceeded my expectation as our scheduled meeting is weeks away. There was nothing urgent about me receiving the materials, but it sure was nice to have them in hand so far in advance. Then I recalled how earlier communications with the managing partner and his staff had clued me in that I was dealing with a first class organization with great respect and value for everyone they do business with, even those outside the direct revenue stream. Their treatment of others goes beneath the surface and is the heart and soul of their success.

They are successful not only because the firm has excellent, experienced lawyers, though they do. Not because they discount services or offer alternate fee arrangements, they don’t. They are successful because they have a law firm culture that operates on mutual respect, consideration, and honesty. CLIENTS like that. A successful firm will not take for granted the impact their internal culture has upon its success.

Culture is a law firm’s DNA.

Truth be told, you can actually tell A LOT about a law firm’s culture by the way they treat their vendors. When someone told me this, years ago, I thought it was absurd. Now, after 15 years in the legal profession, both as an employee and a vendor, I can tell you its true. [Too bad more prospects don’t know this or they’d be interviewing a firm’s vendors, not their lawyers, to uncover what they might expect from the client/attorney/law firm relationship.]

I can now predict, with accuracy, client satisfaction levels in almost 100% of cases simply by my dealings with the firm as a vendor. I have found that there is a direct correlation between the degree to which I am treated respectfully and the degree of the law firm’s success.  Weird, I know….well, maybe not.

In a new book by Barry Libert of Mzinga, “Social Nation. How to harness the power of Social Media to attract customers, motivate employees and grow your business,” (Wiley, 2010), Libert posits that the power of culture is not to be underestimated where business and community intersect. (Yes, your clients are a community!) Among many golden nuggets the book has to offer (full review to follow shortly*), Libert proposes that clients can sense when your culture is a healthy one, and a healthy culture is a healthy company.

“If the DNA is healthy, the company is healthy. If it is not, the company, just like your family, will falter and eventually fail. In business, it means your customers will leave in pursuit of a competitor that will care more about them and better meet their needs.”

I couldn’t agree with Libert more. To wit, I’ve worked inside law firms that had a DNA of respect, honesty and action. They respected their employees and their vendors, i.e., valued their expertise, engaged in fair contracts, didn’t haggle, returned calls, and paid invoices promptly. Not surprisingly, they also had a lot of loyal and happy clients and are still going strong today. Conversely, I’ve also worked where it was exactly the opposite. Ironically, in once such instance, the law firm no longer exists!

Observations from the vendor trenches. [ Or, what shoppers can learn from vendors.]

It starts in the evaluation stage. When a prospective client law firm and I are getting to know one another I’ve noticed that the best firms have taken the time to prepare good questions. They might also have an idea for how they want to proceed, and they have determined a range of fees they’re willing to pay.  Some even have an idea of the specific results they are seeking. (They’ve done some homework or they tell me up front that they are clueless. Honesty is always a good start.) Though this often evolves as we talk, their preparedness is a sign that they take the project, my services, and me seriously. Following the logic, these law firms would also be those that are not afraid to tell one of their prospective clients the truth about the prospects for their case. They would reasonably estimate fees and, if necessary, refer them to another attorney or law firm that is better suited for the matter. In essence, they are prepared and preparation is a hallmark of great law firms and great cultures.

Alternately, I can immediately tell when an evaluation call is a fishing expedition for FREE expertise. In these cases I can fairly accurately assess that the firm is not successful enough to pay for expertise or that they believe their own expertise is the only kind worth paying for; both are bad. Avoid these firms and you avoid disappointment.

After the evaluation stage, I learn a lot about the firm by the length of time it takes to return phone calls or respond to emails. It is illuminating.

For example I am often asked to submit a proposal TOMORROW, i.e., “This is an urgent project for the firm. Can you get that to me tomorrow?  Our committee is meeting on Friday.” “Sure,” I say and work through the evening hours to deliver on my word only to hear silence for weeks. Now, I know that my proposal is not always at the top of the list, but is it too much to ask for a quick email response to say; got the proposal, the committee did not have time to discuss it on Friday, but it’s on the agenda for next month? Non-responsive behavior from a firm that has an URGENT need is likely to be a firm that communicates poorly (or even dishonestly) with their clients. (Note: a distinction should be made between lawyer and law firm, i.e. the law firm may be unresponsive but an individual lawyer can be very responsive. However, when you hire a lawyer you essentially hire their law firm. It’s a 360-degree relationship, and it takes both to make it work.)

The pricing stage is also often a very telling sequence. Being the Pollyanna that I am, I assume that once past the evaluation and the proposal there is sufficient understanding of the value of my services and respect for me as a business owner; that I’ve priced my services competitively and that I intend to deliver value along with the price tag. If I say my day rate is X, it is X. If there is variation in what you’re asking me to provide there may be room for a discount, but if the project is as quoted you can be sure that is what I believe the project will cost—and for me to remain in business to help you in the future. The law firm that doesn’t understand this equation distrusts me. And, not in all cases of course, but such a law firm could actually be over charging or under-delivering their services and they are projecting their behavior on me. [Note to shoppers: There are some firms that just can’t help themselves from negotiating everything! While that’s fair, beware; they will likely be tough negotiators when it comes to writing down your legal bill too!]

Finally, much can be read from the payment process. As a responsible contractor I always include terms of payment in my letter of agreement.  When a client signs that agreement I believe they, in good faith, intend to conform to the terms. (Lawyers must understand this, right?) But to my surprise, even when the situation is black and white, i.e. product or service delivered and approved, there are some law firms that purposely sit on the payment for months, ignoring the terms of our agreement. How this reflects a firm’s culture is crystal clear. In one example, I waited over a year to get paid! It was no surprise to me when I learned that the named partner of that firm was found guilty of fraud and his license suspended.

If clients aren’t raining from the sky…

Word of mouth marketing can be the life-blood of a law firm, i.e. referrals. It can also be what’s standing between success and failure. In today’s social marketplace,  people are talking. The insight we receive from social interactions and communications that take place among and between our clients, employees, vendors, and partners reveal a lot. Decisions about purchasing products and services are more frequently based on how the outside sees our “inside” culture. If clients aren’t raining from the sky for you or your law firm, you may want to step away from the sunshine and look inside at your culture.

“Everybody talks about the weather, but no one does anything about it.”– Mark Twain

Perhaps I could have saved a lot of words and simply said “actions speak louder than words.” Or, perhaps corporate culture, like the weather, is impossible to change for anyone but the Heavens. So, our only recourse is to talk about it and make us feel a little bit better-though totally not in control.

Whatever the case, weather happens. So does culture. Only difference is you can influence your law firm’s culture. Like it or not, how you do business with others outside your revenue stream will impact how you do business with your revenue stream, i.e. clients. And, as Libert suggests….”take good care of your personal values and you will energize your customers, partners and employees.”

__________________________________________________

*Disclosure: I was given a complimentary copy of this book to review.

We’ve come a long way, baby! Three years ago, when I founded my company Law Gravity, I talked to a lot of law firms about their “plans” for using social media. Their response: “What plans?”

There were firms that had a blog or two, but few looked beyond into opportunities presented by other social media such as social networking, social buzz, bookmarking sites, podcasting, or multi-media sharing sites and services like You Tube and Slide Share. Why? “Too much risk.” In fact, many law firms chose to block social media sites on their corporate network.

Fast forward to 2011, and social media is taking on a life of its own with or without the risk averse. Lawyers and law firm employees are doing more than just talking about it these days–many have moved beyond setting up accounts; they’re successfully engaging. Business development and marketing coaches, consultants, public relations, and branding agencies that serve the legal industry have all added social media capabilities to their offerings, leaving one to conclude it’s not going away…

So, what’s next?

2011 Prediction.

Generally speaking, social media for business development requires a lot of one-to-one engagement and tends toward random and serendipitous opportunity. For busy attorneys this becomes a time management challenge (as marketing one’s practice has always been). On the other hand, the law firm entity is challenged to benefit from such activity when it is one-off or worse, misdirected. Social media needs integration and management.

Tracking who’s signed up for what networks, who’s blogging, or how many visitors, friends or fans a page has is not integration. Having a social media policy is not a surrogate for meaningful management.

Progressive law firms, sooner rather than later, will begin to see and understand that effective integration of social media will require a managed business process. Why? Because social media is about a fundamental shift in behavior and it is impacting many facets of both our personal and professional lives – can it get more important than that? It is impacting the way we go to market, make decisions, and communicate with distant clients, friends and colleagues.  The usefulness of the Internet will only increase as the semantic web (3.0) gains traction. The time is NOW for law firms to start developing a managed business process to build social media into the fabric of business plans and all communications (both external and internal), just as was required with email and other disruptive technologies in recent decades.

I predict that in 2011, everyone will begin asking, earnestly, “Hey, how do we take all this random energy and manage social media to our advantage?”

I intend to be on the cutting edge of that answer.

Here’s how I’m seeing it…

2006/07 –

• Maverick attorneys blog and/or open a LinkedIn account.
• Most of the legal industry has no clue what those “Join my professional network on LinkedIn” messages mean.
  • They delete them.

2008 –

• Facebook gets a bad rap as a time wasting activity, so it’s blocked.
• Legal centric social networks appear behind walled gardens removing some of the perceived risk factor.
• Most lawyers have no clue about Twitter
  • “who cares what you had for lunch?”

2009 –

• LinkedIn begins gaining mass – but not depth.
• More attorneys jump on Twitter, but still only a few “get it.”
• Law firms experiment with video.
  • They confuse talking head monologues “about the firm” posted on the firm website with short educational clips on You Tube that people might find really helpful.

2010 –

• Law firms attempt to “manage” social media via POLICY.
  • Half of the firm doesn’t understand what’s the big deal and the other half gets scared away from using social media out of fear.
• Marketing departments scurry to claim the firm’s name on Twitter, Facebook, LinkedIn, etc.
  • and post press releases and event announcements.

2011 –

• Progressive law firms begin to MANAGE social media by first aligning business goals.
• They seek business metrics, i.e. revenue, efficiencies (cost reductions), and brand equity.
• Beyond business metrics they use social media analytics, i.e. measuring centers of influence, share of voice, and sentiment.
• Marketing staff and individual participants continue to measure engagement data such as fans, friends and followers, clicks and views
  • but squarely the real money is on the ROI – how does this impact the top line revenue and enhance client relationships and perceived value.

(For more on how these 2011 ideas are shaping up in the corporate sector, see Jeremiah Oywang’s Framework for Social Media ROI here.)

It’s Elementary.

“Excellent!” I cried. “Elementary,” said he. “It is one of those instances where the reasoner can produce an effect which seems remarkable to his neighbour, because the latter has missed the one little point which is the basis of the deduction.” –Watson and Holmes in “The Crooked Man”

While I don’t claim Sherlock Holmes’ powers of deduction, I am a fan and want try my hand at looking for the one-little-point when unraveling a puzzle. So, while most of the early emphasis of social media among lawyers and marketers was placed on “should we be on Facebook,” “do all our attorneys need a profile on LinkedIn,” or “what should I post on Twitter,” I deduced that social media tools were not the point of social media –they exist, simply, to help people and organizations achieve marketing goals. And, I staked the success of the social media squarely on a “social media plan” informed by a Marketing Plan.

Okay, so I was a bit off track. In 2011 things are becoming clearer. I’m changing my tune.  The heavy lifting of social media starts with “what’s in our Business Plan?” You do have a Business Plan for your law firm, right?

Putting a Business Plan before any action is fundamental. Just because we have new tools, does not mean we have new rules.

(I hate to admit that in my past are far too many Marketing Plans without the fundamental Business Plan in place. One should never lose sight of the fact that the Marketing Plan is a separate document created to support the Business Plan. Also known in legal industry circles as the firm’s “Strategic Plan.”)

So I stand resolved; to deploy social media tools successfully in 2011, you must first have a Business Plan—with goals, objectives, strategies and tactics. A Marketing Plan is merely a strategy found in a Business Plan and social media is simply one of several types of strategies that can be used to execute either or both a Business Plan and Marketing Plan. Only after the social media strategy is chosen, can tactics be identified to execute the strategy, and tools be selected to execute tactics—Yes, Virginia, there is NO Social Media Plan. (Sorry to disappoint the social media consultants and marketers who are busy writing social media plans – your comments are welcome!)

You Need a Tight Ship.

Assuming social media is one of your Business and/or Marketing Plan strategies, in order to manage it successfully you need a tight ship. A tight ship doesn’t leak; it is, at its very core, well built and sea worthy. The captain and the crew trust it implicitly to take them wherever they need or want to sail. Furthermore, on a tight ship, the captain and crew have well-defined roles and an eager willingness to work together to arrive at their destination. If your firm has a well built and sea worthy Business Plan and a well-defined and respected organizational structure, chances are your social media tactics won’t sink.

That being said, launching the social media strategy takes time. It’s okay, and probably necessary, for marketers and lawyers to take some time to experiment with social media tools outside a managed business process. To use the boat analogy, think of it as being in a little dinghy on your way from the dock back to the ship anchored off shore. When a critical mass gets to the “I’m On LinkedIn, Now What?” vessel, it’s time for all hands on deck, check the charts, fine tune the gauges, and get sailing!

I’ll be writing more specifically about organization, management, and business process related to law firm integration of social media in 2011. After all, I’m looking for the same business metrics for Law Gravity that you are… Meanwhile, your thoughts?

Last week the National Labor Relations Board launched a legal case asserting that employees have a right to free speech on Facebook. It announced that it had filed a complaint against an ambulance service that fired an emergency medical technician, accusing her, among other things, of violating a policy that bars employees from depicting the company “in any way” on Facebook or other social media sites in which they post pictures of themselves.

According to the New York Times, Lafe Solomon, the board’s acting general counsel, said, “This is a fairly straightforward case under the National Labor Relations Act — whether it takes place on Facebook or at the water cooler, it was employees talking jointly about working conditions, in this case about their supervisor, and they have a right to do that.”

That act gives workers a federally protected right to form unions, and it prohibits employers from punishing workers — whether union or nonunion — for discussing working conditions or unionization. The labor board said the company’s Facebook rule was “overly broad” and improperly limited employees’ rights to discuss working conditions among themselves.

Moreover, the board faulted another company policy, one prohibiting employees from making “disparaging” or “discriminatory” “comments when discussing the company or the employee’s superiors” and “co-workers.”

The board’s complaint prompted Morgan, Lewis & Bockius, a law firm with a large labor and employment practice representing hundreds of companies, to send a “lawflash” advisory on Monday to its clients, saying, “All private sector employers should take note,” regardless “of whether their work force is represented by a union.”

The firm added, “Employers should review their Internet and social media policies to determine whether they are susceptible to an allegation that the policy would ‘reasonably tend to chill employees’ ” in the exercise of their rights to discuss wages, working conditions and unionization.

American Medical Response of Connecticut denied the labor board’s allegations, saying they were without merit. “The employee in question was discharged based on multiple, serious complaints about her behavior,” the company said in a statement. “The employee was also held accountable for negative personal attacks against a co-worker posted publicly on Facebook. The company believes that the offensive statements made against the co-workers were not concerted activity protected under federal law.”

Law Firm Social Media “Policy?”

So, folks, what does this mean for our law firm social media policies? It certainly raises some interesting questions. Is social media the watercooler or is it something else? And if so, what is it? A permanent record that has the potential to be scrutinized by millions? Is it publishing: Like old school media where libel is a real concern?

There are some typical conditions included in law firm social media policies that may be impacted by this case sending us all into a tizzy.

Will this send us back to GO?
Will we lock down all social media sites and services?
Ban Facebook?

If this case wins and even if it only directly affects union workplaces, I’m pretty sure law firms will also want to revisit several policy points — just to be on the safe side. As innocent and full of common sense as the following language may seem, I’ve used them or seen them in law firm social media policies. With this case, policy statements like these may tip the balance between protecting the law firm brand and permitting free speech.

1. Individuals are personally responsible for the content they publish. What is published will be public for a long time — protect the firm’s good reputation as well as your own.
2. If you choose to add your place of employment to any profile, you must use common sense in all postings and comply with our workplace policies, ethics, and other requirements.
3. Respect for others is mandatory. Do not use ethnic slurs, personal insults, obscenity, or engage in any conduct that would not be acceptable in the workplace.
4. Show proper respect for others’ privacy and for topics that may be considered objectionable or inflammatory. We take this very seriously and any act to the contrary will be subject to discipline or result in termination.
5. What you publish reflects not only on the law firm’s brand, but can also impact your professional advancement, the achievement of your goals and your success in the future.  Use common sense and judgment. Ask if you are uncertain.
6. For your protection, be aware that your associations with others in online social networks and other user generated content sites are a reflection on you. All is revealed in search results. How you represent yourself can be a slippery slope.
7. You must make it clear that you are speaking for yourself and not on behalf of the firm. Speech that appears to represent the firm, even remotely, takes on the appearance of an official stance and is not permitted in any circumstance.

Lawyers Please Share Your Comments.

I’m not a human resource professional nor a risk manager so I don’t claim any authority on this, but I have been an employee. Policies, in my mind, mean that there are consequences to the employee when they are violated. Guidelines on the other hand are simply strong suggestions. Something to consider – are your social media do’s and don’ts policy or guidelines? If they are policy, are they overly broad? Do you need to be very specific and keep in mind the issues now being vetted by the NLRB?

At the end of the day, is firing someone over poor choices, bad judgment and such protected? I’d like to hear from an employment lawyer on this issue. I would think that any post that impedes the good will of the law firm or company could be considered bad judgment and cause for dismissal, but then I could be wrong on that.

I’ll be watching this closely. Meanwhile, please share your comments!

There are several things law firms can learn from the recent publicity of the JetBlue incident, particularly in the context of the social Web and reputation management, but three stand out.

1. Your stakeholders want you to succeed. They want to believe that you, their law firm, do the right thing; that you’re a valuable asset to their team and that others believe as they do.
2. Align your law firm with stakeholders, via engagement on the social Web, BEFORE a crisis strikes to give you access to, and credibility with, your stakeholders if and when an incident needs to be addressed.
3. Transparency on the social web is critical for law firms, especially in times of high media interest, and so it must be handled with care, for both the law firm and all involved parties.

Address crisis or rumor with effectiveness and style via the social Web

The recent Steven Slater/Jet Blue “Beer Slide” saga has had everyone in a tizzy lately; especially the media, JetBlue fans, executives at JetBlue who are normally quite chatty on the social Web, and their lawyers.  It appears that their legal counsel prompted Jet Blue’s silence in the early aftermath of the incident. Three cheers for the step-away-from-the-microphone advice during the initial brouhaha. In this case it turned out to be great advice.

Despite the negative squawking that penetrated the net – Where are they? Why aren’t they telling us what’s going on? – JetBlue pulled away from business as usual on the social Web until they gathered the essence and then posted a brief, but highly effective, entry on their corporate blog, BlueTales. They presented a side of the story with a compassionate, yet lighthearted, persona addressing the issues they were facing. They asked their online stakeholders to hold on.

What JetBlue did right.

In a simple blog post, they covered the issue with transparency –at least as much as legal considerations would allow at this early stage of the investigation— and the blog tool was the perfect delivery channel. (Note: they had already established a loyal following – see Lesson Two)

Lesson One: We love you!

In response to the blog post (193 comments so far), here’s what a few readers had to say

• …i love you jet blue
• …this is your chance to rise above all the nasty comments left online, by being gracious and forgiving. Offer his job back; don’t worry, he won’t take it; give him a stern lecture; and remind all passengers they MUST obey, by federal law, the orders of flight attendents, who are NOT just glorified waitresses and waiters. Here’s your chance: don’t blow it!
• Thank you for acknowledging your fine employees at this time. My family and I have always been very true, loyal customers of JetBlue.
• I think JetBlue should show the world, yes the world, that there is a lot of abuse in the service industry. Please show the world that there is a company that has empathy for their loyal employees. I feel your company is in the best position to teach the world it needs to be polite to people in the service industry and people in general. The world needs this lesson. Show us your empathy.
• This is a goldmine opportunity. You should definitely hire this guy, and have him make a bunch of funny YouTube videos about the dos and don’ts of carryon luggage. Have him try to shove a size 10 carry-on into a size 9 over-head, sideways. At the end he could have a little sign off (think Dan Rather’s “Courage!”) and then take the chute out of the plane, like Batman. If you don’t somebody else will, why not get the credit for being fair to someone who is viewed by many as a hero, and at the same time turn some lemon-like bad publicity into some earned advertising lemonade.
• I’ve flown with Jet Blue and I have nothing but good stuff to say! I don’t think this story will tarnish ur reputation. Your a great little airline keep doing what your doing it works I really like that Google maps thing that says where the plane is that is so cool!
• Jet Blue…..the most polite officers and crew. I only fly Jet Blue. Only had one tiny set back on Blue….No TV for 3 hours of my flight. But I lived. Thank you Jet Blue for being the best Airline to fly with…

Okay, okay, so we don’t expect law firm clients to be in love with their law firms in the same way they might love their preferred airline. BUT, take for example today’s headline story on the National Law Journal site.

Hunton & Williams has been hit with a $150 million lawsuit in Wisconsin claiming that the law firm maliciously squeezed a broker out of a contract and should pay up for the company’s losses.

The Richmond, Va.-based law firm issued a statement through a spokeswoman in response to the action. “This suit was filed by an adversary of one of our clients,” it said. “These allegations have no merit, and we plan to vigorously defend against them.” [Emphasis added]

What if, in a circumstance like this, there was a social channel (blog, website, discussion board, Facebook page, whatever) where the law firm laid out, after careful examination and with some transparency, the situation to the extent allowed by ethics and privilege? What if loyal clients added their comments? How would that impact the reputation of the law firm? How would that impact the clients’ perception that their voices mattered? How would it give readers what they wanted to hear and give them understanding?

Before you say, “noooo way would we open up the pipes and let people trash us,” I say, why is that? Why do you think you’d get trashed? Don’t you know you have clients who really do depend on you? Sure there might be people who would use the opportunity to grind an ax, but I’m going to take a guess that, over all, sophisticated readers would see right through that. Especially if you were being transparent, i.e. human, rational, reasonable business professionals who practice law and deliver value to clients.

Lesson Two: Align with stakeholders before the crisis hits.

For JetBlue, their social Web presence started long before Steven Slater, a veteran flight attendant, had maxed out on his tolerance for rude passengers, chugged a few beers, opened the evacuation slide, exited his job in dramatic fashion and entered the Internet media spotlight. They were there, amidst their stakeholders before the crisis hit. They were active on Twitter, Facebook, and their blogs. They were not only posting news releases and canned messages, they were engaging.  They had positioned themselves positively in the minds of their stakeholders. They were a “human” entity. (Which is also why there was shock when they didn’t give an early response. A two edged sword that had a happy ending.)

Law firms that are still on the ledge or are not taking the social Web seriously may be in for a surprise the next time they need to communicate with a broad base of share stakeholders. (See also Toyota Recall) Best to be proactive and get a social media presence now.

Lesson three: Be transparent, but handle with care.

I am not suggesting that law firms or anyone should try cases in the media. We all know that strategy. Sometimes it works and other times it hurts. However, it doesn’t hurt to be prepared and the social Web needs your attention.

When something dramatic happens, the media is looking for a story. They’ll get it where ever and however they can. In the pre-Internet days they would pull quotes and sentiment from passersby. That hasn’t changed, only now they have access to those sources 24/7 without leaving their desks, thanks to user generated content. To make matters more intense, passersby are telling their stories without the filter of the media.

Prepared statements from public relations departments and executives are becoming passé where the social Web is involved. Canned statements are ineffective unless they are handled with transparency and human perspective. The social Web demands it. Woe to the law firm who ignores it. Eventually it WILL catch up to you. On the flip side, speaking too early or too loudly may come back to haunt you. It’s a new PR approach, best to be prepared to handle it carefully.

Bottom Line:

Maybe if we–law firms–were more transparent, within ethical boundaries, people could be educated in the subtleties of the profession and attitudes would shift. After all, aren’t most civil disputes and legal actions the result of misunderstandings? The law is immense and difficult to interpret. What is your law firm doing to engage with their constituencies on the social Web so that you will have ready access to manage your reputation proactively?