Employees represent your firm beyond the hours they work in the office. Therefore it is important to create guidelines for your employees on the appropriate use of Social Media as related to their work, both for their benefit and for the benefit of your company.

Why Do Law Firms need an employee Social Media policy?

A legal firm may have any number of employees in a variety of roles with different responsibilities. Whether it’s a new hire or senior partner, a recruiter or HR manager, marketing director, administrative personnel or a disgruntled or rogue employee, it’s almost guaranteed that all have one thing in common – every employee is probably active in social media, in one way or another.

Employee activity in social media may be personal, professional or a mix of both. Some employees may use social media for only personal use, while others may use it as part of their role as representatives of the firm. Social media may be used by employees as a formal or informal mechanism to communicate with professional networks, or to share company news or information. These activities may be optional or required of their position within the firm, as a means to be more effective in their role. There are both opportunities and risks associated with employee activity in social media.

In California attorney firms, employers are responsible for their employees’ activities and employees are required to be supervised. This includes supervision of their activity on social media, both personally and professionally, as it relates to their employment.

A written social media policy will help your employees understand the impact of their social media behavior and any disciplinary actions their behavior may incur if they don’t comply with their employer’s social media policies or the Rules of Professional Conduct. It is in the best interest of a law firm to establish clear and effective written social media policies to provide guidance to their employees, so that they are aware of their employer’s expectations and how to conduct themselves ethically on social media, in both a personal and professional capacity.

Create your own policy

  1. Develop operating principles and templates for employees to follow when actively posting in social media.
  2. Categorize and develop separate guidelines based on each employee’s role and related social media activities.
  3. Make it clear how your business would define an employee’s personal activities on social media and his/her professional activities on social media.
  4. Create an effective employee training program that educates and informs employees. Address these topics and any others that may be relevant to your business:
    1. Do’s and Don’ts (subjects covered may include discrimination, client confidentiality, defamation, IP, harassment, references, endorsements/testimonials).
    2. Ownership of social media profiles, relationships and work product.
    3. Record-keeping and Archiving processes.
    4. Account/Password Management.
    5. Mobile Device Management.
  5. Establish a system to monitor employees’ social media activities in the context of employment law and other legal limits.

Rules and Regulations

  1. California Bar Requirements Rules of Professional Conduct (re employee supervision)
    • Rule 3-110 Failing to Act Competently (A) A member shall not intentionally, recklessly, or repeatedly fail to perform legal services with competence. (B) For purposes of this rule, “competence” in any legal service shall mean to apply the 1) diligence, 2) learning and skill, and 3) mental, emotional, and physical ability reasonably necessary for the performance of such service. (C) If a member does not have sufficient learning and skill when the legal service is undertaken, the member may nonetheless perform such services competently by 1) associating with or, where appropriate, professionally consulting another lawyer reasonably believed to be competent, or 2) by acquiring sufficient learning and skill before performance is required. Discussion: The duties set forth in rule 3-110 include the duty to supervise the work of subordinate attorney and non-attorney employees or agents.
  2. American Bar Association Requirements
    • ABA Rule 1.1 Competence discusses the importance of competence representation of a client.
    • ABA Rule Confidentiality Of Information instructs lawyers to keep information pertaining to a client confidential unless stated otherwise. This is particularly important due to social media and the ease of spreading information.
    • ABA Rule 5.1 Responsibilities Of Partners, Managers, And Supervisory Lawyers, Rule 5.2 Responsibilities Of A Subordinate Lawyer, and Rule 5.3 Responsibilities Regarding Nonlawyer Assistance. These three rules from the ABA play out in more importance to the employees that law firms employ. While representing a client it is important to note that if an employee of yours discloses information or acts non-professionally then the supervising lawyer may be at fault. Take measures to ensure you are safe by training your employees and instructing them on proper social media usage.

Problem Scenarios

How would you approach the following situations? What kind of systems could have been in place to avoid these issues?

  1. A rogue employee who, on the last day of employment, posts disparaging comments to the firm’s Twitter company profile.
    • Make sure employees understand they are bound by the terms of their agreements, and that there will be consequences to violations at any stage of their employment.
    • Take measures to remove exiting employees from social media accounts prior to their last day, if it doesn’t interfere with their job.
  1. On his personal Twitter account, a firm associate publishes private information on a financial client’s case currently in litigation. The post is picked up and reposted by a national media outlet which causes the client’s stock price to drop 5%.
    • Training should be clear and specific. To protect your clients and your firm, clearly outline what employee may or may not post. Stress the critical importance of confidentiality.
  1. An employee receives a “connection” request from a senior firm partner on LinkedIn. A few days after the connection is made, the partner requests a money transfer. The request is in fact a fake LinkedIn profile created by a hacker.
    • Set up a system of checks and balances regarding any exchanges with colleagues or clients. Confirm and double check transactions, especially when involving money. In approving important transactions, personal confirmations are necessary, as unsecured social media accounts are vulnerable to being compromised.

These examples demonstrate how critical it is for a firm to have a well thought-out, clear social media policy, and an employee training program in place. A comprehensive employee social media policy and employee training can help minimize the risks associated with social media activities. In more and more circumstances, it can often mean the success or failure of your business.