A communication shift: Be prepared rather than left behind

November 1st, 2012
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By Kathleen Kriel, Nomfundo Manyathi and Mapula Sedutla

The rise of social media platforms over the past few years has significantly changed the way people communicate with each other. And, while social media creates new opportunities for organisations such as law firms to engage with their clients, it also creates risk that must be managed. This article aims to assist attorneys and law firms in doing so.

According to Mike Saunders, chief executiave officer of digital marketing agency DaigitLab, participating in social media is not a question of being on a platform but rather taking part in a communication shift. ‘People have changed their preference when it comes to communication. It has become imperative to be a part of and involved in this new communication style,’ he said.

Mr Saunders said that social media has become an integral part of any marketing campaign as a tool to connect and engage with clients.

Further, in the Law Society of South Africa (LSSA) guideline document ‘The management of e-mail – guidelines for South African law firms’ (www.lssa.org.za, accessed on 18-10-2012), drafted by attorney Mark Heyink, it is stated:

‘There can be little doubt that the mainstream of communication in the world and South Africa is electronic. Attorneys who deny the importance of these developments run the risk of losing touch with their clients and failing to optimise their practice to meet the demands of modern business in a modern world.’

The guideline document goes on to state: ‘In considering the transition and the proper governance and management of electronic communications, attorneys must be mindful that the technologies and their application have resulted in novel risks. In addressing the transition of practice from exclusively paper and text environments to predominantly electronic communication environments, attorneys have to manage the risks inherent in electronic communication. Failure to do so is a fundamental failure of the discharge of an attorney’s professional duty.’

Social media in law firms

In May 2011 LexisNexis and Martindale-Hubbell conducted the ‘Global social media check up: A global audit of law firm engagement in social media methods’ survey, with a focus on the use of social media in law firms. One hundred and ten law firms across 22 cities were audited and results show that 77% of respondents used one or more social media platforms such as Facebook, Twitter and LinkedIn (www.martindale-hubbell.co.uk, accessed on 27-8-2012). The results also show that social media has revolutionised business-to-business communications and has opened up a new tool of connecting with stakeholders. However, because of social media, there is a decreased sense of control and brand ownership for all kinds of organisations. This needs to be weighed against the fact that, by avoiding online spaces, many law firms are missing out on the opportunity to widen their online footprint.

Other results of the survey include:

  • Eighty-five of the law firms that participated in the survey had LinkedIn profiles, making it the most popular network among the firms surveyed.
  • With regard to usage by region, the survey revealed that Johannesburg-based law firms use social media more proactively compared to other firms in the Middle East and Africa region. Local firms have visible profiles on Twitter and LinkedIn, as well as some content on Facebook.
  • Most firms started integrating social media on their website with widgets (tools or content that can be added, arranged and removed from a website). This serves two purposes: Firstly, to connect visitors to their profiles and, secondly, to direct visitors back to the main websites.
  • In the survey, the Johannesburg law firms all had visible profiles on Twitter, LinkedIn and some content on Facebook. They also showed a strong trend towards linking the widgets on their websites. Johannesburg firms that participated in the survey were Bowman Gilfillan, Norton Rose, ENS, Webber Wentzel and Werksmans Attorneys.

Social media policies

One way of minimising the perceived risks of an organisation using social media is to create a social media policy. Chairperson of the LSSA’s E-Law Committee, Gavin McLachlan, said that the committee was considering various social media guidelines from other jurisdictions, such as the Law Society of England and Wales, with a view to draft a set of social media guidelines for South African attorneys. The draft guidelines, once finalised, will be submitted to the LSSA Management Committee for consideration. Thereafter, the LSSA will ask for comments from its constituents. Mr McLachlan added that the guidelines would be tested against the existing marketing guidelines of the provincial law societies and that input from practitioners may also be sought.

Mr McLachlan said that a social media policy was necessary because attorneys need to communicate with their clients and market their services on an ongoing basis. He said that many clients, particularly younger ones, increasingly preferred the social media space rather than e-mail or other formal methods of communication.

‘Attorneys must ultimately keep pace with the demands of their clients. However, the basic ethical principles which underline professional communication and confidentiality must also be carried through to social media communication,’ he said.

Drawing up a policy

According to Michelle Sherman of the Social Media Law Blog, every business should have a social media policy because employees’ posts reflect on the business. Ms Sherman states that damage can range from harm to the company’s brand and public perception of it to legal consequences such as loss of trade secret protections, unfair competition and deceptive advertising (www.socialmedialawupdate.com, accessed 25-5-2012).

Ms Sherman said that attorneys should think about how their posts will reflect on the firm and its clients or potential clients. No matter how restrictive their privacy settings, their posts may become public and other attorneys, colleagues, prospective clients and employers search these sites for information-gathering purposes.

In respect of social media policies, Mr Saunders said: ‘A good social media policy does not restrict people from social media but rather equips them to use social media in the most beneficial manner. When looking at a social media policy, it is a good idea to understand how people are already engaging with you, how your customers are talking to you or about you, and how your employees are doing the same. Do your best to get a clear picture of the technology your employees and customers are comfortable using.’

Mr Saunders suggests: ‘Take a hard look at what needs to be allowed for, encouraged or discouraged. Do not simply create a “rule list” of dos or don’ts. This would be very ineffective because you will simply look as though you are trying to control something you do not have control of.’

Mr Saunders recommended the policy prepared by technology and consulting corporation, IBM, which he said empowered people to share company values, adding: ‘A value-based policy will always go further than a rule-based policy.’ He said that the staff of IBM have hundreds of blogs and in 2005 IBM released this guideline for bloggers:

  • Speak in the first person.
  • Respect copyright and fair use laws.
  • Safeguard confidential and proprietary information.
  • Protect company clients, business partners and suppliers.
  • Respect your audience and your co-workers.
  • Add value.
  • Do not pick fights.
  • Be the first to respond to your own mistakes.
  • Adopt a warm, open and approachable tone.

This guideline has subsequently been expanded and incorporated into the IBM Social Computing Guidelines (see www.ibm.com, accessed on 18-10-2012).

Lessons from the e-mail management guidelines

We suggest that some of the principles contained in the LSSA guideline document referred to above can be applied to the use of social media by law firms.

According to the guidelines, attorneys have a duty to manage information securely and with cognisance of their professional and other duties. This includes ensuring that information remains, where necessary, confidential in both its communication and retention and ‘appropriate processes mitigating the potential legal and business risks inherent in electronic communications are established and adhered to in using the technologies required for electronic communication’ (at 9).

In chapter seven of the guideline, it is stated that the size of the practice and the nature of the information will determine the content of an electronic communication policy. According to the guideline, the policy should provide clear parameters for outlining how breaches, ‘accidental or malicious’, should be reported and dealt with as well as possible disciplinary measures (at 24).

Reputational risk plays a major role when it comes to any form of electronic communication. According to point 5.13 in the guideline, unacceptable content communicated by an employee of the practice (even if there is a disclaimer) will be seen by the recipient as coming from the practice and may cause embarrassment or even liability claims against the practice.

Further, the guideline states that without a clear electronic communications policy governing electronic communication, it is unlikely that attorneys can discharge their obligation of confidentiality appropriately. It states: ‘Attorneys need to devote time and effort to the development of appropriate electronic communications policies as they are a critical aspect of any modern attorney’s practice’ (at 28).

Guidance from other jurisdictions

The Law Society of England and Wales was the first law society to issue a practice note on social media (www.lawsociety.org.uk, accessed 31-5-2012). The practice note, which was issued in December 2011, states that ‘the growth of the use of social media by clients may result in a corresponding expectation that the legal profession should also embrace it as part of its working practices’.

The practice note cautions that the same ethical obligations and principles that attorneys adhere to professionally apply to their conduct in an online environment. These include acting with integrity, not allowing their independence to be compromised and behaving in a way that maintains the trust of the public.

According to the practice note, social media policies will vary according to the law firm’s needs. Broadly, a policy should define the parameters of social media activity and the guidelines for engagement. According to the practice note, the purpose of a policy should be to –

  • consider what value engaging in social media will bring to a practice and its clients;
  • ensure that staff are aware of the standards and processes in place and are using the most appropriate channels; and
  • protect a practice’s reputation from inappropriate use of social media.
  • The practice note states that a law firm should include the following in its social media policy:
  • Strategy: How will social media activity support or promote the practice’s aims and objectives?
  • Guidelines for engaging: What are the limitations to what can be discussed, commented on or promoted via social media to avoid the potential for reputational damage to an individual or a practice?
  • Management: Who will manage the policy and be responsible for ensuring compliance?
  • Roles and responsibilities: Who will oversee social media activity and take responsibility for the day-to-day administration of the different activities, and who will be able to participate in social media activity?
  • Confidentiality: How will a practice ensure that confidentiality is maintained when social media is used?
  • Consistency: How will a practice ensure consistency in its approach to drafting messages and contributing to discussions in different social media channels?

In 2009 the Judicial Ethics Advisory Committee of the Florida Supreme Court ruled that it was unethical for Florida lawyers and judges to be ‘friends’ on social networking sites as this would ‘convey the impression’ that a lawyer who appears before judges is in a special position to influence a judge if the two are ‘friends’ on social networking sites such as Facebook.

However, the committee said that it was not unethical for a judge to post comments and other material on a social networking site if this does not otherwise violate the Code of Judicial Conduct (www.jud6.org, accessed 28-5-2012).

In February 2012 the International Bar Association (IBA) published a report titled ‘The impact of online social networking on the legal profession and practice’, in which it, through a survey, examined the role of social media in the legal profession and analysed whether there was a need for associations, societies and councils to develop guidelines regarding the use of online social networking in the legal profession.

The report addressed the impact of social networking on six groups of legal actors, namely lawyers, judges, jurors, journalists, law students and professors, and legal employers.

The IBA’s major findings included:

  • Over 90% of respondents found that online networking presented a new set of challenges for the legal profession.
  • Almost 70% felt that it was acceptable for lawyers and judges to have each other as contacts.
  • Over 90% considered it unacceptable for lawyers and judges to post comments or opinions about fellow lawyers, judges, parties or cases in progress.
  • Over 85% deemed it acceptable for lawyers to use the information on online profiles of the parties in a case (which forms part of the public domain) as evidence in proceedings.
  • Over 75% of respondents considered the advantages of online social networking to outweigh its disadvantages.
  • Over 90% stated that there was a need for Bar associations, societies and councils, or alternatively the IBA, to issue a practice note regarding the use of online networking sites in the legal profession and practice.

Conclusion

It is becoming increasingly difficult for attorneys to avoid the social media space. As stated by Mr Saunders: ‘From a social media point of view, transparency, honesty and trust are always good ethics to uphold. Social media has become an integral part of any marketing campaign because it offers a better tool to connect and engage with our clients. People do business with people they like. People like people who are easy to communicate with. If a client likes to communicate on social media channels, they would like to communicate with you in the same way.’

This article was first published in De Rebus in 2012 (Nov) DR 26.

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