Law Practice Today | March 2013 | Young Lawyer Survival Guide
March 2013 | Young Lawyer Survival Guide
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Social Media: Community Building and Networking on Steroids

By David Harlow

In the February issue, Kurt Olson wrote The Verdict Is In: Social Media Can Cause Legal Catastrophes, in which he recounted a tale of woe—and of losing a case—based on his client’s misuse of social media.  He wrote of being blindsided at a workers’ compensation board hearing by Facebook posts from his client—who claimed she was disabled—recounting her vacation.  His takeaway from the experience: “Before posting …resist the urge.”

I share Prof. Olson’s frustration at the unfortunate Facebook posts and other social media usage that likely lost his client her case; we part ways, however, when he throws the baby out with the bathwater. Social media is not all about vacuous “fame-seeking.” Individuals and businesses—including lawyers and law firms—have legitimate reasons to use social media for communication and community building with all sorts of constituencies—clients, colleagues, referral sources, experts and more. Remember, though, that social media is like a set of power tools. If you do not learn to use them carefully, you can get hurt. If you do learn to use them well, on the other hand, the benefits to be gained from their use far outweigh the costs.

The world around us demands engagement through the use of these tools—it is difficult to ignore the volume of information shared through social media. On any given day, people share 1 billion posts on Facebook, upload 4.5 million photos to Flickr, post 5.2 million photos on Instagram, add 5.2 million minutes of video to YouTube and send 400 million tweets. (The volume may well be higher since the last time I checked.) A couple of years ago, when these numbers were not quite so stratospheric, Google’s former CEO Eric Schmidt observed that every two days we create as much information as we did from the dawn of civilization up until 2003.  At the current rate, we may be getting there by lunchtime.

While an enormous amount of useless information is out there, valuable nuggets exist as well.  Opposing counsel in Prof. Olson’s case was able to find a few nuggets of value, winning the case. Aside from the potential use as impeaching evidence, content shared through social media can help lawyers and their clients in many other ways. In fact, in recognition of the growing importance of technological advances and new forms of electronic communication—including social media—the ABA Ethics 20/20 Commission revised the Model Rules of Professional Responsibility, stating in part that in order “[t]o maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in law and its practice, including the benefits and risks associated with relevant technology ….” Model Rule 1.1, Comment [6].  (Happily, the rules and commentary are written broadly enough to avoid the necessity of constant updates—they speak in terms of “relevant technology” rather than specific platforms such as Facebook and Twitter.)

As we move into the future, what risks and benefits are associated with the relevant technologies of social media that must be understood and, frankly, harnessed, by attorneys?

The risks are the same as any human communication, but they are magnified given the power of the social web. In the bad old days, it would have been difficult, but not impossible, for Prof. Olson’s opposing counsel to find and call a witness who had seen his client having fun in the sun. Social media did not create the problem, but it made it more readily discoverable.

Once we understand that power, we can harness it, and use it for good.

To share a personal example: When I put out my own shingle a number of years back, I put up a web site as well. However, nobody ever found me online until I developed a strong web presence—which I maintain through blogging, and using Twitter, LinkedIn, Facebook, Google+ and YouTube to help drive traffic to my blog and as platforms for conversations. In addition to connecting with potential clients, I also connect online with colleagues (new and old) around town, around the country, and around the world. I am part of numerous communities of interest, communities I can call upon when I need information or an introduction. The social web is the new town square. There are things that attorneys can and can’t share in open online communication (just as we can’t in real life); my health care clients are bound by similar restrictions. Nevertheless, there is robust discussion in the law and health care communities I belong to online, and I also enjoy getting to know my online friends in real life at meetings and conferences.

My world, and the worlds of attorneys, health care professionals and patients I know who use these power tools carefully, are greatly enriched by the social web. Work out your policies and procedures for using the social web, put on your figurative water wings, snorkels or flippers, and come on in—the water’s fine.

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About the Author

David Harlow is the principal of The Harlow Group LLC, a health care law and consulting firm. He can be reached at 617.965.9732 or on Twitter: @healthblawg.

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