NJBIZ.com
Some lawyers face tight reins on Twitter, while some are hands off
By Ken Tarbous
February 27. 2012 3:00AM
While some law firms are laying down strict rules and guidelines to handle personal social media posts, others take a more hands-off approach, saying it can be difficult to enforce rules governing personal tweets and Facebook status updates.
Three years ago, Newark law firm Gibbons P.C. first began permitting its attorneys to have personal Facebook accounts, and it established a comprehensive social networking and social media policy, setting forth rules and guidelines.
"Our lawyers are literally the walking embodiment of the brand. We don't sell a soft drink or a pair of tennis shoes. We're selling legal advice, and legal advice is coming from an individual attorney," said Patrick C. Dunican Jr., chairman and managing director of Gibbons. "So anything that that individual attorney does to adversely cast aspersions on themselves will impact their ability to be a lawyer, and also will adversely impact the firm."
McCarter & English LLP, New Jersey's oldest law firm, takes a different approach. The firm is in the process of formalizing its social media policy, but doesn't actively monitor employee or partner personal account posts, in part because of employment law and privacy concerns, and workers' rights issues, said Alitia Faccone, a partner at the Newark firm.
"Monitoring is a tricky question," Faccone said. "I don't think we, as a firm, can mandate a policy that tells our lawyers or employees what they can and cannot do."
McCarter & English's formal policy will set guidelines for the responsible and effective use of social media within the context of the law practice, Faccone said, but the firm doesn't allow employees to use the firm's equipment or networks for personal social media purposes, Faccone said.
"I think our job as lawyers and law firms is to figure out a way to balance our ethical obligations, and all of social media is somewhat fraught with landmines if it's not used properly," Faccone said. "A lot of planning and forethought need to go into any kind of policy, whether you're a law firm or not."
Dunican said Gibbons relies on an honor system, but when word of potentially offending posts gets back to the firm, the sites are checked. Still, the firm has fallen victim to inappropriate social media postings. According to Dunican, in one incident, a law intern in the New York office posted on Facebook, "Off to the law firm now to be chained to my desk." In another incident, an associate in Gibbons' Newark office posted on Facebook, Dunican said, something along the lines of "Do only crazy people work at big law firms?"
Posts seen by the public, clients and other legal professionals — including lawyers on the other side of litigation or negotiations, and judges who sit on matters involving their attorneys — can damage cases and careers, legal professionals say. Bad business moves can include inappropriate online comments and photos, or disclosures of privileged or confidential information by firm employees, from the head of the firm to support staff.
For the most part, the basic standards of civil behavior that populate codes of conduct apply to social media, with the challenge of electronic media being its immediacy and worldwide reach, as opposed to pre-Internet days when audiences, for cocktail party conversation, for example, were more limited.
As professional services providers, law firms are acutely aware of the reputations of their employees and clients, and the instantaneous nature of social media and social networking websites has added another realm that could tarnish the name of a good lawyer or practice.
The New Jersey Supreme Court's Office of Attorney Ethics says that lawyers' online posts are subject to the same guidelines and restrictions as other writings, said Winnie Comfort, spokeswoman for the court. The court's Committee on Character does "various and sundry" checks on lawyers as part of the process for admission to the bar, but does not routinely check social media pages of attorneys as part of that process, Comfort said.
The New Jersey Bar Association doesn't have a standard policy on how lawyers and firms should be using social media, according to Kate Coscarelli, spokeswoman for the association.
David Wissert, the chair of the employment group and deputy general counsel of Lowenstein Sandler P.C., tracks the evolving legal and ethical standards on the use of social media, and speaks to industry groups about the implications for law firms. His firm has a social media policy that sets forth guidelines for lawyers and other employees.
In general, nationwide, government regulatory agencies do not check on lawyers' social media activities, Wissert said — at least, not yet.
"There was probably a time when you wouldn't expect committees on character to look at and ask about driving records, but they do that in New Jersey," Wissert said.
