Understanding how to harness social media in the practice of law is a hot topic. From marketing your law practice and trying a case in the media to discovery and jury instructions, social media has infiltrated the way we practice law. It is no longer something that can be ignored or all-out blocked.

There are many firms that prohibit access to social media sites at work. Some actually block entrée, while others simply discourage it. Many claim that social media sites are time-wasters. But social media is not just a productivity issue.

“That’s really the language that masks the larger generational issue,” said Kim Huggins, the author of “GENerate Performance.” According to Huggins, there are four generations of legal practitioners in the workplace: Traditionalists (born before 1946), Baby Boomers (1946-1964), Generation X (1965-1980) and Generation Y (1981-2000). Of them, a large majority of the managing partners and judicial decisionmakers fall into the Traditionalist and Baby Boomer categories.

Then there’s the group into which I fall: Generation X. I went to law school before e-mail or cell phones were mainstream. In fact, my first cell phone was the kind that came in a bag the size of a small suitcase and plugged into the car adapter.

While the Traditionalists and Baby Boomers continue to believe that social media is a fad, Generation Y’ers and other early adopters are changing the world virally. If you don’t believe me, just Google (verb) “Wael Ghonim,” Google’s (noun) head of marketing for the Middle East and North Africa. He’s the one who organized the Egyptian revolution in February, forcing the country’s 30-year-long dictator, Hosni Mubarak, to step down.

Social media in and of itself is hot, as are the myriad issues that it has caused us to address in the management of law firms.

Policies

Social media policies are hot. However, drafting them and having them sit on the managing partner’s desk is not. Policies are not just about stating whether your lawyers, administrators and support staff are permitted to access social networking sites while at work. They should be comprehensive.

Some of the things a law firm should take into consideration when drafting a social media policy include the following:

• Whether a social media policy is required by your professional liability insurance provider;

• Recommendations of the ABA;

• State rules within which the firm practices law;

• Acceptable and unacceptable uses;

• Use of the firm hardware and e-mail system versus personal devices and platforms;

• Who can be “friended” (i.e. judges, witnesses, supervisors, journalists, etc.);

• How usage can affect one’s employment; and

• How social media usage will be monitored.

Bruce M. Ludwig, a labor and employment partner with Willig Williams & Davidson, agrees that employers need sound social media policies. “It’s not enough just to have policies. They need to be communicated, then uniformly and fairly applied,” he said.

Ludwig spoke to the enforcement of such policies. “There are pronounced limitations, especially as they relate to public employers who have certain constitutional protections that are not necessarily applicable to the private sector,” he said. “Then, even in the private sector there are limitations as to what an employer can do, even when a rule or policy has been violated. For example, if an employee goes on Facebook or a blog and posts criticisms of the employer, those comments are generally protected speech under the National Labor Relations Act and similar state statutes. There are, however, limitations, especially if the posts are falsely disparaging.”

It is also advisable that you monitor your clients’ online activities. There is much counsel to be given about how employees’ and corporations’ online behavior will affect the company, both proactively and in litigation.

If you represent corporate clients, ask them if they have social media policies, and if they do not, guide them through the development and implementation process.

The specifics of social media policies vary widely depending on industry, usage and corporate culture. Check out SocialMediaGovernance.com and ComplianceBuilding.com, two databases that provide a wide array of examples.

Marketing

Of the many attorneys I interviewed for this article, most use social media as a way to establish new and nurture existing relationships. According to the ABA’s 2010 Legal Technology Survey Report, 56 percent of attorneys in private practice have a presence in an online social network, an increase from 43 percent in 2009 and 15 percent in 2008.

Andrew R. McRoberts, an attorney with Sands Anderson in Richmond, Va., indicated that many potential clients develop their first impressions of an attorney via the Internet. “This will be even truer in the future,” he predicted.

McRoberts said that his firm has encouraged social media engagement. “With the firm’s support, we blog, use LinkedIn, Twitter and Facebook, and have hosted Internet-based CLEs,” he stated. “Combining these efforts makes each one more effective.”

Donna Ray Chmura, an attorney with Sands Anderson’s Raleigh, N.C., office, said their firm “uses blogs to highlight its niche markets.” The firm has collectively “decided to encourage 100 percent participation of their attorneys in LinkedIn, and have encouraged attorneys to use Facebook, Twitter and other technologies,” she said. According to Chmura, the use of social media “has been invaluable for our business transactional attorneys in particular to connect with clients and to really understand their current business realities.”

Of his use of social media, McRoberts said “it led to my being selected as one of Virginia Lawyers Weekly’s ‘Leaders in the Law’ for 2010.”

I met McRoberts and Chmura via a social media introduction, and confess that I did look into their online profiles. I even got to know them a little bit by watching the YouTube videos embedded in their attorney profiles on the firm’s website. Now that is a good use of social media marketing!

Disciplinary boards will likely view an attorney’s use of social media as advertising so conform to the applicable rules of professional conduct. The ABA launched the Commission on Ethics 20/20 to review lawyer ethics rules and regulations across the United States in the context of a global legal services marketplace. Topics under exploration include online networking services, paying for online advertising, referrals and leads and lawyer websites.

Discovery

When asked about the biggest challenge in dealing with social media, Joel Patrick Schroeder, with Faegre & Benson in Minneapolis, Minn., pointed to e-discovery and the challenges related to production. He pondered how a party can accurately produce a non-static, ever-changing website maintained by a third party (such as Facebook or LinkedIn). He said, “Until better technology is developed, most parties will need to be content with accepting documents from social media as print-outs.”

Schroeder has successfully used such print-outs in an employment discrimination matter. When comparing information contained on a publicly available LinkedIn profile to the plaintiff’s resume, Schroeder noticed inconsistencies. He said, “We were able to prove that the resume originally submitted to our client was fraudulent in several ways.” This comparative evidence limited the plaintiff’s damages, favorably and efficiently resolving the matter.

Fort Myers, Fla., insurance and tort defense attorney John M. Miller of Henderson Franklin Starnes & Holt shared that he was able to discredit a plaintiff using MySpace photos. The plaintiff was “allegedly injured on an inflatable slide” on his client’s premises and “could no longer, as a result of her injuries, engage in horseback riding and riding ATVs.” Miller found photos on the plaintiff’s MySpace profile of the plaintiff engaged in both of those activities several months after the accident in question. The images were introduced during mediation and significantly reduced the overall value of the claim.

So what about information that is not publicly available? Late in 2010, in McMillen v. Hummingbird Speedway, the Court of Common Pleas of Jefferson County (Pa.) allowed the defendant to gain access to the plaintiff’s Facebook and MySpace social networking sites during discovery. The court concluded, “Where there is an indication that a person’s social network sites contain information relevant to the prosecution or defense of a lawsuit … access to those sites should be freely granted.”

This appears to be a trend regarding discovery of social networking sites.

Then there’s the question of information that has been withheld or deleted. I spoke with attorney and law practice management expert Jennifer Ellis of Freedman Consulting Inc. regarding whether anyone had yet gotten themselves into trouble for failing to provide access to social media. Neither she nor the e-discovery experts at Sensei Enterprises Inc. in Virginia had found any reported case law to that effect. Research had not revealed any published opinions holding that the destruction or loss of a social networking page containing content that was potentially relevant to foreseeable or ongoing litigation could lead to sanctions.

However, one decision, Mackelprang v. Fidelity National Title Agency of Nevada Inc., has indirectly held that this may be the case. Although the Mackelprang court determined that MySpace was not required to hand over the plaintiff’s MySpace e-mails, it stated in dicta that if the MySpace page contents were truly created by the plaintiff, then she may be required to hand them over or face sanctions for failing to do so.

Juror Vetting & Instructions

Who would have thought years ago that we could sit in a courtroom on a tiny computer or cell phone with wireless access to the largest databases of individuals and their preferences during jury selection? This is happening all over the country.

During voir dire, ask if the juror reads news online, participates in social networks, shares opinions online, or has his or her own blog.

“The traditional question-and-answer session known as ‘voir dire’ is being transformed into ‘voir Google,’ sparking concerns about privacy and about whether courts are adequately supervising the process,” Brian Grow of Reuters Legal stated.

At the 2010 Philadelphia Bar Association Bench-Bar Conference in Atlantic City, N.J., Philadelphia Court of Common Pleas Judge Sandra Mazer Moss, along with four Philadelphia lawyers, presented a CLE on technology in the courtroom. Juror vetting was one of the primary issues addressed.

Of the process, many of the judges in attendance from Pennsylvania said they were not comfortable with juror vetting and would not allow it in their courtrooms. However, as Grow so aptly explained, “The federal courts so far have not addressed the issue, … and just two states, Missouri and New Jersey, have said it’s acceptable in some forms.”

I anticipate this is a topic that will continue to remain in the forefront of jury selection procedures.

Litigators should also be addressing social media in their jury instructions. In December, Reuters Legal reported that “since 1999, at least 90 verdicts have been the subject of challenges because of alleged Internet-related juror misconduct and the numbers are increasing rapidly.” Updating your proposed jury instructions is a must.

Other Legal Issues

There are many legal topics that are ripe for litigation, judicial direction and practice area expansion as they relate to social media. These include Internet privacy, intellectual property, content ownership, labor and employment law (discrimination, harassment, unfair competition, defamation, disclosure of confidential information, criminal activity, etc.), regulatory compliance, lawyer negligence and ethics violations (unauthorized practice of law, conflict of interest, etc.), constitutional rights (freedom of speech) and more.

Social media is the Wild West. This uncharted territory and its unparalleled reach are game-changers for lawyers, litigants, judges, jurors and witnesses alike. •

Gina F. Rubel is the owner of Furia Rubel Communications Inc., a public relations and marketing agency with a niche in legal communications. A former Philadelphia trial attorney and PR expert, she is the author of “Everyday Public Relations for Lawyers.” She maintains a blog at www.ThePRLawyer.com and is a regular contributor to The Legal Intelligencer blog. You can find her on LinkedIn at www.linkedin.com/in/ginafuriarubel or follow her on Twitter at http://twitter.com/ginarubel. She can be reached at 215-340-0480 or gina@furiarubel.com.