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Is E-mail Outdated? A Law Firm’s 2014 Guide To Best E-Mail (& Productivity) Practices

Remember study hall in school? Wouldn’t it be nice to have one hour every day in the workweek to devote to “homework”—that is, to complete all those deliverables and other documents you couldn’t quite finish between case status meetings and conference calls.

Reading and answering e-mail takes up approximately 28 percent of the average workweek for employees, reports a 2012 study by McKinsey & Company. Communicating and collaborating internally takes up 14 percent of the workweek, and searching and gathering information just 19 percent.

That means, the time that’s left for role-specific tasks—the tasks your employees were actually hired to perform, for which your employees were trained—take up only about a third (39 percent) of the average workweek.

So why does coordinating effort between employees and communication take up so much time and dry up so much productivity?

In many ways, e-mail has transformed menial labor into a performance-eating monster.

E-mail, once a more efficient way of communicating from your law firm in New York to its client in Shanghai, has now become the most abused way of communicating from your law office on Floor 1 to its counterparts on Floor 2.

What’s the solution for this time-sucking glut of a technology? Some experts are calling for a total elimination of the culprit.

Is e-mail over?

Recently in an article with Wired Magazine’s Marcus Wohlsen, Facebook co-founder Dustin Moskovitz admitted he had trouble keeping up with the 180 employees he oversaw.

“I would spend weeks collecting information about the state of the world,” explained Moskovitz.

“And by the end, it would be a couple weeks out of date.”

The world has come a long way in terms of digital communication—Twitter feeds, Facebook status updates, Instagram photo posts. Moskovitz left Facebook to establish a single application to combine project management with a communications system. He co-founded such a technology with Justin Rosenstein in their San Francisco start-up company Asana.

Although both Asana founders still use e-mail, “Rosenstein says that, with Asana, he needs just 15 minutes a day to get through the email that needs his attention. The rest of his time, he says, he can devote to real work,” writes Wohlsen in his article for Wired.

“All the email and meetings, all that work about work, all this soul-sucking effort, is not real work. It’s a distraction,” Rosenstein says.

“If we can get rid of that distraction so we can actually get some work done, that just totally opens the doors.”

It may be a couple of years before Asana’s product reaches law firm doors. And, who knows if a new communications platform will ever—in our lifetime—replace the golden standard of e-mail.

Nevertheless, it’s time to stop wasting billable hours on inefficient e-mail habits. Come up with a friendly and effective e-mail guidance policy. One with rules such as:

  • E-mail across U.S. states or national borders, not walls
  • Never use “reply-all”
  • Face time with firm partners goes farther than Facebooking
  • Monday mornings are a firm-wide e-mail blackout. Whatever needs to be said should be conducted in-person or on the phone

Perhaps it’s time law firms and businesses reinstate the school study hall. Choose an hour, an afternoon, or a day to black-out technology and write-in work. A meeting-less morning, a conference-call free afternoon, or e-mail-less day goes a long way in productivity for the firm and project deliverables for your clients.

E-mail is not dead yet, but innovative time-management ideas for your employees might be the next best thing.

Still got a lot on your plate? Read C4CM’s guide: Effective Time Management: Take Control, Tackle Work Flow Chaos and Overcome Productivity Challenges.

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Newest Privacy Lawsuit? Employers Starting To Demand Employee Facebook Passwords

Stories about the need for social media policies abound across the Internet. Whether it’s to protect lawyers from accidental jury tampering or to protect firms from their own associates’ blogs, social media policies—comprehensive and in writing—are crucial for the modern company.

Especially when you consider, for example, online murmuring about recent requests by employers for the username and password information of all their potential employees.

The idea of violating a job applicant’s privacy seems so blatantly wrong, you’d think these stories must be false, right?

Unfortunately, no. The Associated Press published this piece, which serves—in the least—as a warning to professionals about a scary new employment trend:

“Back in 2010, Robert Collins was returning to his job as a security guard at the Maryland Department of Public Safety and Correctional Services after taking a leave following his mother’s death. During a reinstatement interview, he was asked for his log-in and password, purportedly so the agency could check for any gang affiliations. He was stunned by the request but complied. ‘I needed my job to feed my family. I had to,’ he recalled.”

The risk of privacy violations in this manner proved so real that even Facebook, through its chief privacy officer Erin Egan, issued a statement regarding the practice.

“In recent months, we’ve seen a distressing increase in reports of employers or others seeking to gain inappropriate access to people’s Facebook profiles or private information. This practice undermines the privacy expectations and the security of both the user and the user’s friends. It also potentially exposes the employer who seeks this access to unanticipated legal liability.”

The most alarming of these practices is the reported incidences of employers asking prospective or actual employees to reveal their passwords. If you are a Facebook user, you should never have to share your password, let anyone access your account, or do anything that might jeopardize the security of your account or violate the privacy of your friends. We have worked really hard at Facebook to give you the tools to control who sees your information.”

Obviously, Egan is not amused. And, if employers are not careful with their social media policy, Facebook might even throw a few lawsuits their way.

The tech community as a whole is also up in arms against this recent, unfortunate trend.

Charles Cooper for CNET recently wrote an article titled, “Fork over your Facebook log-on or you don’t get hired. What?” in which he states:

“Especially in the current economy, it’s the ultimate nightmare scenario: Choose principle, or choose your ability to put food on the family table. You can’t have both. That’s the sort of enraging choice politicians, technologists, and free-speech advocates find easy to rally against. Remove this from the Facebook context and it simply looks like an unfair (and counterproductive) hiring practice. Something along the lines of: ‘Gee, we’d like to offer you this job, but before we do, we need you to fill out a few forms so that we can look at your tax records for the last three years.’ Or some such absurd quid pro quo. Lawsuit, anybody?”

Congressmen and lawyers are cleverly harnessing this trend as an opportunity for increased action.

Maryland State Senator Ronald N. Young has already proposed a couple of social-network privacy bills, including one targeted at employers and another at colleges and universities.

“We’ve even heard that some universities hired people to friend (student athletes) to follow what they read and write on Facebook,” Young said to Cooper for CNET. “It’s unconstitutional. It’s like me applying for a job, and the employer saying, ‘I’d like to tap your phone and listen to all your calls and monitor your mail.’”

Lawyers, for their part, should become equally proactive.

Because the issue is so contentious and, apparently, widespread, it’s important that law firm managers advise their clients to create a social media policy and then review its content. Law firms should ensure this policy includes appropriate hiring and firing provisos.

This advice could be circulated through a memorandum or even via casual conversation. But, law firms should feel ethically responsible for the legal actions of their clients concerning social media.

In addition, law firms should revise their own social media policies to target hiring and firing practices. No associate should feel as though he is being monitored or his activity restricted on the Internet.

Nevertheless, law firms should guard themselves from overexposure on the Web. Social media can be an asset to business development, as well as a liability.

The American Bar Association recently published, “How to Create a Law Firm Social Media Policy,” on its website here. More specifically, your firm should learn the rules for disciplining and terminating employees for their social media posts.

In fact, even in non-unionized workplaces the National Labor Relations Board’s (NLRB) recently decided that disciplining or terminating an employee who engages in concerted, protected activity on sites such as Facebook or Twitter is unlawful.

What does this mean for employers? Even the most well-drafted social media policies may violate the NLRA if not kept up-to-date.

So, sign up your firm for The Center For Competitive Management (C4CM)’s social media courses, including this one: Social Media, Workplace Policies, and Violations Under Section 7 of the NLRA.

Or, this one: Developing a Social Media Policy: Clear Guidelines to Prevent or Reduce Employment-Related Problems.

However you decide to broach the issue, the time to do so is now. The reports of abuse—and subsequent legal action—are both real and plentiful.

In an uncertain economy, this is a lawsuit that no employer can afford. And one that no employee can afford to ignore.

-WB

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The Risks of Social Media Use For Lawyers

Although many legal consulting companies advise law firms to make good use of free and accessible social media, such as Twitter, blogging, or social network sites. Some consider the practice to be more of a trap than trail to success.

Thomas J. Watson, senior vice president and director of communications at Wisconsin Lawyers Mutual Insurance Co., recently wrote an article for the Wisconsin Lawyer titled, “Lawyers and Social Media: What could possibly go wrong?

According to Watson, “Potential hazards include losing control over your message, blurring professional and personal use, expending too much time and money on managing social media use, creating unrealistic client expectations, and making false or misleading communications about a lawyer’s services, not to mention the possibility of violating the rules of professional conduct.”

His article is full of sound professional advice, including, don’t talk about or to clients over social media, beware of the marketing-related Rules of Professional Conduct when writing online, and don’t give legal advice over the Internet.

In some sense, it’s common sense.

Of course, it’s natural to keep aware of conflicts of interest and to not engage in the unauthorized practice of law. Still, something about the anonymity of digital makes people forget about these daily professional conduct rules.

Also, the more software and technology used by your firm, the more necessary tools for confidentiality and protection, like an excellent IT Department, becomes.

Employees at your firm should properly secure its wireless network; update its antivirus software and build a firewall; and remember to remove metadata or password protect-sensitive email attachments.

But, are these risks—inherent in any online activity—so severe that they outweigh the benefits of using social media?

“Is fashion attorney Staci Riordan, perhaps the fastest woman associate to make equity partner at Fox Rothschild, a century old national law firm, advertising with her heavy use of Facebook and Twitter?” questions Kevin O’Keefe in his article “Is all use of social media subject to legal ethics rules?” on his blog.

The question seems rhetorical. And O’Keefe, author of Real Lawyers Have Blogs, believes social media is not about advertising, rather, it’s about building a conversation of trust between lawyers and their clients.

“Riordan, like many shrewd lawyers who truly understand relationships and reputation aren’t built by having separate online identities, uses Twitter and Facebook to network and engage with business leaders, other lawyers, civic leaders, and friends. Riordan knows networking to nurture relationships and establish trust with others so as to build a strong word of mouth reputation is the stuff life is made of for lawyers looking to grow their business and become better lawyers,” he writes.

Ultimately—like any great rivalry—O’Keefe and Watson want the same thing.

Both men want to watch the industry of law regain some of the reputation of honor and integrity it has lost over the years. And, both are eager to influence and advance their struggling profession.

As lawyer jokes become commonplace and the information highway makes pro se (and in-house) representation all that more accessible to Americans, law firms are seeking new outlets and tools for survival.

Using social media to keep up with the times has its risks. But, so does not using it. Embrace innovation.

If your firm still has concerns, consider hiring a consultant to guide you into the 21st century instead of driving you astray.

 

-WB

 

C4CM offers an audio recording that explains: Social Media at Work: Bulletproof Policies that Minimize Legal and Financial Risks

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Is Checking Facebook At Work A Federal Crime? Where Your Firm Should Weigh In…


Image: chanpipat / FreeDigitalPhotos.net

If checking Facebook at work were a federal crime, the government may as well outlaw office gossip and coffee breaks.

These days, Congress and corporate America seems to be pigeonholing the Internet as a workplace tool—and nothing more. But, for gamers, social media-istas, and chronic procrastinators, this determination is like being stuck between a rock and a hard-drive.

Why can’t the Internet be both a business tool and a conduit for leisure?

Mostly because the government would love to regulate the suspicious and potential dangerous online activities of its population, the way it can’t personal pleasure or freedom.

Yesterday, Chief Judge Alex Kozinski, in an opinion of the U.S. Court of Appeals for the Ninth Circuit, decided the government had gone too far in interpreting an anti-hacking statute called the Computer Fraud and Abuse Act (CFAA).

According to Judge Kozinski’s opinion, no, it is not a federal crime to check facebook at work—despite workplace policy. And, no, it is not a federal crime to gchat with friends, play online games, shop, or watch sports highlights in violation of employer policy.

 “While it’s unlikely that you’ll be prosecuted for watching Reason.TV on your work computer, you could be. Employers wanting to rid themselves of troublesome employees without following proper procedures could threaten to report them to the FBI unless they quit,” explained Judge Kozinski.

“Ubiquitous, seldom-prosecuted crimes invite arbitrary and discriminatory enforcement.”

The WSJ Law Blog points out that this ruling puts the Ninth Circuit at odds with the Fifth, Seventh,, and 11th circuits, which adopted a broader view of the law’s coverage.

“Were we to adopt the government’s proposed interpretation, millions of unsuspecting individuals would find that they are engaging in criminal conduct,” stressed Judge Kozinski.

As such, Judge Kozinski asked the three dissenting courts to reconsider.

“These courts looked only at the culpable behavior of the defendants before them, and failed to consider the effect on millions of ordinary citizens caused by the statute’s unitary definition of ‘exceeds authorized access.’ They therefore failed to apply the long-standing principle that we must construe ambiguous criminal statutes narrowly so as to avoid ‘making criminal law in Congress’s stead,’” wrote Judge Kozinski in his opinion.

“We therefore respectfully decline to follow our sister circuits and urge them to reconsider instead.”

Just as courts ought to reconsider their rulings, law firms should reconsider their related workplace policies.

In light of the potentially huge consequences for violating workplace social media policies (at least for federal crimes in the Fifth, Seventh, and 11th circuits), what kind of message are you sending associates?

Is your firm culture so severe that it would like to see its employees prosecuted for procrastinating online?

A study by American Express showed 39 percent of younger workers won’t even consider working for a company that blocks Facebook, according to Kevin O’Keefe’s points for “Why law firms need to stop blocking the use of social media,” on his site Real Lawyers Have Blogs. Because Facebook is now the primary communication and networking tool for many young professionals, why block its use and alienate this group?

Whatever your choice in language and limitations in a workplace social media policy, law firms should remember—in the least—to create one.

In 2011, over 100 employers were accused of improper social media practices or policies, according to The Center For Competitive Management. If not to protect your employees from strict law enforcement, protect your firm.

If you’re unsure where to start, try research and a round-table discussion with a mix of junior and senior attorneys. Along with administrators, ask the group to create a social media policy that reflects their own opinions on the matter. Most likely, your employees will know best what types of social media uses actually constitute abuses.

A round-table discussion will also ensure your employees take the time to read workplace policy; after all, they helped write it.

Finally, if you’re still stuck, attend C4CM’s course on audio CD, Social Media at Work: Bulletproof Policies that Minimize Legal and Financial Risks.

-WB

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Facebook & The Future of Social Media Law

These days, it’s not uncommon for social media to be used in discovery for complex litigation. Federal labor laws are now looking into its application to Facebook, Twitter, and blogging, for example.

The future of social media law is currently uncertain. However, it is clear that change is upon us. For 2012 New Year’s resolutions, have your law firm brush up on social media litigation and its impact on the future of your firm and clients.


Right of Publicity

Right of Publicity is a nightmare even for intellectual property lawyers. The law, which gives individuals the right to control the commercial use of his and her personal likeness, is often unclear.

But, recently, the right of publicity has been applied to online abuses on the part of Facebook. So, 2012 is a time for IP lawyers to finally define the use of right of publicity in social media.

On December 16, 2011, a federal judge refused to dismiss a class action lawsuit against Facebook for the site’s running Sponsored Story ads that include the names of the user’s friends who “like” that ad. The plaintiffs claim that this practice amounts to a “commercial appropriation” of the friends’ likenesses.

Expect more explicit regulations on this intellectual property item in the months to come.


Concerted Activity
 

Brian Wassom, for Mashable, believes the world wide web will see better guidance on “conerted activity.”

Changes in facebook privacy settings or simply lack of attention in the part of users has led employers to read scathing remarks made by current employees. These employees, in the past, have been fired for their online activity.

Unfortunately for employers, in a few cases, the NLRB deemed such content “concerted activity” between employees intended to improve their workplace conditions.

Wassom writes,

“Many of these cases have settled. A few have recently been decided by administrative law judges within the NLRB. In 2012, however, we’re likely to see at least some of these disputes decided by full-fledged federal courts, which should help further clarify for employers and employees alike exactly where the lines are. The NLRB itself took a step in that direction in
August 2011, when it released a 24-page memo (PDF) summarizing all of its then-current social media cases, and the reasoning behind them.”

Wassom may be correct in assuming that employment legislation is poised for change in a big way. The rules for non-discrimination and “concerted activity” in the workplace will need to be altered to accommodate Facebook and other social media to prevent the violation of the spirit of labor law.


Privacy Rules

Facebook made the news in November 2011 by agreeing to submit to audits of its privacy practices by the Federal Trade Commission for the next 20 years.

Part of this was in reaction to a rise in lawsuits regarding privacy.

For example, a Mississippi woman sued Facebook in federal court, accusing it of violating federal wiretap laws to track her online activity. The issue was, this woman wasn’t even when logged onto the site when the tracking occurred.

“Leading up to September 23, 2011, Facebook tracked, collected, and stored its users’ wire or electronic communications, including but not limited to portions of their Internet browsing history even when the users were not logged-in to Facebook,” according to the complaint by Brooke Rutledge of Lafayette County, Miss.

“Plaintiff did not give consent or otherwise authorize Facebook to intercept, track, collect, and store her wire or electronic communications, including but not limited to her Internet browsing history when not logged-in to Facebook.”

Litigation about privacy issues is not new for Facebook. But, it’s still unclear what the courts will rule

Just Google Facebook and litigation to find out more. In the meantime, read Brian Wassom’s full article for Mashable, “5 Predictions for Social Media Law in 2012” and key moments in social media law below.

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Internet Censorship: How SOPA and Protect IP Affects Law Firms

All great revolutions have a “freedom” song to encourage valor in dissidents, to celebrate liberty for all, and to express sentiments of solidarity in protest.

A myriad of poems and songs during the American Revolution memorialized the fight for freedom, such as “Liberty Song” and “My Country, ‘Tis of Thee.” Even the Stamp Act was singled out by a catchy tune, “American Taxation,” by Peter St. John.

In contemporary times, we are reminded of the old adage, “the more things change, the more they stay the same.”

Musical patriotism is alive and well in America, but these days, the expression and protection of the bill of rights concern web-based conflict.

Today, you can sing along to yet one more reason for dissent, the Stop Online Piracy Act (SOPA). In keeping with tradition, the act has inspired its own freedom song, “Firewall,” by Leah Kauffman (via CNET).

And, the digital revolution is not lost on British songwriters, either. Dan Bull, a U.K. singer, released “SOPA Cabana,” which also openly opposes the Republican legislation currently under debate in the House (via CNET).

So, why does SOPA deserve these trial-and-tribulation tributes?

SOPA and its sister bill in the Senate, the Protect IP Act, target overseas “rogue websites” that host illegal copies of movies, videos, music, and photos. If passed, the law would require Internet service providers to deny customers access to any violating website, domain name, or IP address.

There are broader implications to the bill. Search engines, such as Google, Yahoo, or Bing, for example, will be required to adjust their search results to exclude foreign websites in violation of the bill. Payment providers and ad services will also be impacted, being forced to refuse business to any website in violation of the bill’s terms.

The U.S. Chamber of Commerce, in a letter to the editor of The New York Times, defended the bill, saying, “Rogue Web sites that steal America’s innovative and creative products attract more than 53 billion visits a year and threaten more than 19 million American jobs.”

It seems, however, that American jobs within affected U.S. industries—Internet service providers, search engines, ad services, to name a few—will be the first to lose, as U.S. companies will bear the burden and costs of compliance.

The Verge (via Above the Law) summarizes the bill’s major problem, “Because US copyright holders generally can’t drag a foreign web site into US courts to get them to stop stealing and distributing their work, SOPA allows them to go after the ISPs, ad networks, and payment processors that are in the United States. It is a law borne of the blind logic of revenge: the movie studios can’t punish the real pirates, so they are attacking the network instead.”

In the same vein, Rebecca MacKinnon wrote an on-point The New York Times op-ed against SOPA. She starts her article with:

“China operates the world’s most elaborate and opaque system of Internet censorship. But Congress, under pressure to take action against the theft of intellectual property, is considering misguided legislation that would strengthen China’s Great Firewall and even bring major features of it to America.”

In addition to the questionably unconstitutional nature of the bill described above, SOPA also seeks to infringe on some of the social and political liberties upon which America was founded:

“YouTube, Twitter and Facebook have played an important role in political movements from Tahrir Square to Zuccotti Park. At present, social networking services are protected by a ‘safe harbor’ provision of the Digital Millennium Copyright Act, which grants Web sites immunity from prosecution as long as they act in good faith to take down infringing content as soon as rights-holders point it out to them. The House bill would destroy that immunity, putting the onus on YouTube to vet videos in advance or risk legal action. It would put Twitter in a similar position to that of its Chinese cousin, Weibo, which reportedly employs around 1,000 people to monitor and censor user content and keep the company in good standing with authorities.”

Recently some Biglaw firms were thrown into the fray.

Aside from those law firms who were directly implicated in the bill, firms should pay attention to the progression of SOPA for three main reasons:

1. Take a position

SOPA in the House, and Protect IP in the Senate, have widespread implications, and they will certainly affect the business of your best clients. So, find out quickly where they (and you) weigh in.

2. Act 

Law and politics are inherently mixed. If there were ever a time to act on this hotbed issue (by, say, biglaw pressure), now is the time. The Senate Judiciary committee has already approved the Protect IP bill and it’s waiting for a floor vote that has been scheduled for January 24. Furthermore, during a two-day debate in the House Judiciary committee in mid-December, SOPA supporters seemed to have a commanding majority on the committee. Congress returns in 2012 to vote on the bill.

3. Prepare

The number of online companies is growing rapidly. Whether or not your firm supports SOPA, if it passes in the House, lawyers will need to bring many of their clients with web-based corporations into compliance.

Ultimately, lawyers have long composed this country’s first patriots. Two-thirds of the fifty-five delegates who attended the American Constitutional Convention were lawyers.

And, it was a lawyer—Francis Scott Key—who wrote the lyrics to this country’s most symbolic and proudest tune, The Star Spangled Banner.

In 2012, your firm faces a difficult decision. What anthem—for or against the IP revolution—will you sing?

-WB

Read more about why law has an important place in politics in, “Peace, War, and Lawyers” in addition to other constitutional upsets here.

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Beware Of Blogging: Virginia State Bar’s Message To Attorneys Via Surprising Misconduct Charge

Considering a blog site for your law firm? Perhaps you should check with your State Bar first.

In one of the first cases of its kind, the Virginia State Bar has brought a misconduct charge against a criminal defense attorney in the state for blogging about cases on which he has worked.

The State Bar alleges that Richmond criminal defense attorney Horace Hunter is using his firm’s blog site for advertising, read the full charge here. Hunter counter-argues that his articles consist of news and commentary, read his blog here.

Does Virginia’s charge violate Hunter’s rights to free speech? Or, are lawyers using firm blogs to get around the ethical and legal requirements of advertising?

In light of the economic recession, lawyers are looking to improve their practice and attract new clients through a variety of social media. Articles advising firms to open Twitter accounts, Facebook pages, and blog sites are abound.

And, for good reason.

In 2011, four out of five American businesses with 100 or more employees use social media marketing, according to research conducted by eMarketer. That’s a significant increase from 2008 when a mere 42 percent of companies marketed via social media, reports the same source.

So, businesses are using social media, like Twitter, Facebook, LinkedIn, and Blogger, both to seek customers and to also find appropriate legal representation. Law firms, for their turn, are competing with one another to sign as many corporate clients as possible.  

Standing out in a technology-driven crowd can be difficult for law firms. Impossible for those behind the digital times.

But, at least one State Bar is sending a message to its attorneys that ethical and legal rules about advertising your firm still apply in the blogosphere, reports The Washington Post.

Except discussing cases—even your own—has been a longstanding tradition for lawyers nationwide. Usually it’s done in speeches, post-courtroom press talks, or newspaper interviews.

Are blog posts any different?

“If the Virginia Bar believes that blogs that discuss news and commentary should have stringent disclaimers that precede the content because they are deemed to be advertisements, then the Virginia Bar may have to require that every blog post, blog comments on other blogs and other user-generated content by an attorney to contain a strict disclaimer,” Brad Shear, a Bethesda attorney specializing in social media law, said to The Washington Post.

“It becomes a slippery slope.”

 

Whatever your opinion on this matter, it’s important to understand the risks of creating a blog for your firm.

If you decided to do so, protect your firm via the following four steps:

  1. Create a disclaimer on the “About” page or at the end of each post; 
  2. Get written consent from your clients to discuss their cases on the blog;
  3. Implement an internal Social Media Policy for your firm; and 
  4. Remember Nicole Black, attorney and author of Social Media for Lawyers: The Next Frontier, a good rule of thumb is “if you can’t do it off-line, you can’t do it online.”

-WB

 

For more information, attend C4CM’s course, “Social Media Policy Dos and Don’ts: Employees, Networking Sites and the Law.”

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