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@firms: #what are your lawyers tweeting about?

By Patrick Bellerose

A few minutes after landing in Memphis for a presentation he was to make at Fedex’s headquarters, James Andrews tweeted this message: “Confession. I’m in one of those cities where I think I’d rather die than live here!’” Soon afterward, Andrews received an e-mail from a Fedex communications officer reminding him that Fedex was originally founded in Memphis and that the company would appreciate a little more respect for its home town. The e-mail ended on a sarcastic note: “[...] confession: my co-workers and I don’t see what your presentation this morning has to do with our communications work with the employees.” Yikes!

Most worrisome of all was that Andrews was not a novice tweeter but a social-media specialist for a major public relations firm, Ketchum Digital. Needless to say he is no longer their employee. If an expert can make such a blunder, what risks are being taken by lawyers, in whom the client’s trust is essential?

“We are in uncharted waters,” admits André Mazerolle, who handles marketing for Toronto’s Bereskin & Parr. “On the one hand, we want to take advantage of the opportunities offered by social media, but we also want to avoid our colleagues’ putting themselves in an awkward situation.”  

His firm has been on Twitter for less than a year and three employees have their own accounts which clearly link them to Bereskin & Parr. It is an ambiguous situation for the firm. 

“We do not check up on what they say, and social media are evolving so fast that we don’t have time to implement a real policy on their use,” says Mazerolle. “It’s as if we had given them a giant megaphone. A megaphone at a cocktail party."

Indeed, a faux pas on Twitter can have greater repercussions than at a cocktail party. The biggest danger, obviously, concerns information about the clients. “In major law firms, no one can know everything about all of the firm’s clients. So one must be extremely cautious to avoid disclosing competitive information,” says lawyer Xavier Beauchamp-Tremblay, a litigation practitioner with Stikeman Elliott in Montreal. “Even seemingly innocuous information can give investors or competitors an inkling about a company’s strategy.”

Regardless, Beauchamp-Tremblay makes comments and voices opinions on his Twitter account, which he has had since 2007. “People don’t feel like reading a robot,” he says.

Another social media hazard: spontaneity. Forget the well thought-out article that was reread by three partners or the press release issued by the marketing manager. “One can picture a lawyer who walks out of the courtroom and tweets his comments on the judgment… or the judge,” says Dominic Jaar, president of Ledjit, a firm specializing in information management, e-discovery, and law and technology.  The risks are even greater on Twitter, where lawyers often have more influence than their firm.

At Bereskin & Parr, for instance, Megan Langley Grainger, an intellectual property practitioner, has over 1,800 followers versus her firm’s 353. The reasons for this phenomenon are twofold. First, the public prefers to read something a person said, rather than an impersonal entity.  Second, a look at law-firm Twitter pages shows that they generally consist of press releases, with little added value.

And what about the lawyer-client relationship when advice is given online? Although he advises prudence, Jaar finds that the risk is minimal. “A general comment cannot be seen as legal advice. It’s like writing an article. But when you communicate directly or by e-mail, that’s entering into the lawyer-client relationship.”

Establish a clear policy

Despite the potential risks, many prefer to see Twitter and other social media in a positive light.  To Langley Grainger, Twitter helped her become more diligent in her professional reading. “Being online forces me to research my field daily so I can tweet information for my followers.”

As for Jaar, he has obtained contracts by following corporate counsel for major corporations.  However, he only approaches those who clearly express a need in his field. “Actually,” he summarizes, “Twitter is above all a very powerful networking and learning tool, rather than a business development tool.  But you have to know how to use it.”

That is why Nicole Black, an American lawyer and the author of Social Media for Lawyers: The Next Frontier (released in March 2010), stresses the importance of establishing a clear policy on the use of social media. “Firms need to sit down with their lawyers and decide what they are trying to achieve by being online,” she explains.

At Bereskin & Parr, for instance, Langley Grainger has opted to focus on issues involving brands, trade-marks and legal strategies.  “My firm and I decided that would be the niche where I can make an original contribution to the online discussion,” she explains.

In establishing a social media policy, some documents may be helpful.  Black’s book, prepared for the American Bar Association, devotes several chapters to this question.

North of the border, in 2008 the Canadian Bar Association published its “Guidelines for Practising Ethically with New Information Technologies,” a supplement to the CBA Code of Professional Conduct. The last section (on page 16) is devoted to “Participation in Online Discussion.” And for those who are still hesitating to start blogging or tweeting, Black points out that people are already talking about firms and their clients on the various social media sites.

Failing to understand this trend comes with a cost, she warns: “If firms don’t know how to use these tools, how can they react quickly in a crisis?”  

— Patrick Bellerose.  Mr. Bellerose is a Montreal freelance journalist with social media expertise.