Denver Bar Association
February 2012
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Don’t Fear the Tweeter: Shape Your Social Media Policy with an Eye Toward the Future

by Nicole M. Mundt

 

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s a social media manager and “recovering lawyer,” I understand the fear and skepticism of social media among well-established, and often conservatively traditional, institutions. So, when Indiana’s Delaware Circuit Court issued a formal policy forbidding their employees from using any kind of social networking site during work hours, and strongly “advised” that they also refrain from social networking on their own time, the commentary on the absurdity of it all naturally fell to me.

Rather than doing an in-depth analysis of how forbidding employees from using social media sites infringes their freedom of speech (the First Amendment is not my strong suit), I’m more compelled to address the fear that institutions have of social media. I use the term “institutions” loosely here. In this case, I’m referring to the legal profession in general, and I base many of my assertions on my social media experience in the health care industry (an institution in its own right).

I am sympathetic toward the policy writers, as they desperately try to keep a firm grasp on something that is undoubtedly beyond their control. As is so often true in law (and other institutions), something new and powerful presents a threat to the way things have always been done. Just like the creation of the Internet, social media is changing the way the world interacts.

When the Internet was introduced to the practice of law, no one could have fathomed that one day we would have WestLaw and LexisNexis. No one imagined that, one day, it would no longer be necessary to confine oneself to a library basement and pore over volumes of statutes and antiquated case law in order to draft a motion. The practice of law could hardly conceptualize e-filing a pleading with the court or filling out corporate formation documents in another state on the computer. Even the introduction of email and its impact on attorney communications was, at one time, a terrifying concept.

Knowing what we know now about how the Internet has improved the efficiency of the practice of law, it seems silly that attorneys and law firms vehemently resisted integrating the Internet into their practices. We joke now about those firms that refused to get the Internet and those attorneys that insisted on traditional letters and mailings, rather than email. All of the hand-wringing and concern about confidentiality of emails and the reliability of case law found online now seem ridiculous.

We, in the practice of law, resisted the change, terrified of disrupting the way things were for a new piece of technology that seemed beyond our control.

Social media presents a similar scenario. Those who understand it have been touting the benefits since its inception. Those who don’t, however, write policies forbidding their employees from using it.

The Delaware Circuit Court policy “…applies to all existing and future social network sites, including, but not limited to, MySpace, Face Book [sic], Twitter, YouTube, LinkedIn, and blogs. Any site accessed through the Internet for the purpose of connecting one person to others with similar interests or backgrounds is a social network site, even if the common interest is as loose as enjoying watching funny or unusual film clips.”

The way the policy is written makes it abundantly clear that its authors do not understand the power of social media. They also don’t understand that by forbidding certain behavior, they’re contributing to social media’s power. Any parent of a teenager knows that an outright ban on behavior makes anyone want to do that one thing that much more. It’s not our fault—we’re human (blame Adam and Eve).

So, although I don’t have particular issues with the policy’s mandate that employees not access social media sites from their work computers during working hours, it’s the attempt to influence employee behavior outside the workplace that really appalls me. The portion of the policy that should be raising eyebrows states: “Court employees shall not use personal computers or hand-held devices (I-phones [sic], Blackberrys [sic], and other cellular devices) to access the Internet, specifically social networking sites, while in the workplace during working hours (while the employee is ‘on the clock’). No employee should perform non-work related tasks during work hours, including accessing personal emails and texting on non-work related matters.”

The policy goes on also to restrict an employee’s behavior at home: “Because the Court must maintain a high standard of conduct, an employee who reveals her or himself to be prejudiced and/or who reveals her or himself as a person who does not maintain a prudent and judicious lifestyle may give rise to an appearance of impropriety.”

Putting aside the First Amendment violations (which, admittedly, are so egregious that even I picked up on them), there’s a much higher-level, practical response here. Rather than focusing all of this energy on keeping people away from social media sites, I would challenge our profession to be creative and develop social media applications that advance the practice of law. Many law firms today have Facebook pages, Twitter feeds, and blogs. Those who don’t are just fighting the inevitable. But my challenge goes beyond the traditional forms of social media—Facebook, Twitter, and YouTube. When the Internet first became publicly available, no one had conceived of the concept of Westlaw or Lexis—until they did. And nothing has been the same since.

Sure, social media sites are risky. I understand the concerns of law firms that do not want to provide a soapbox for disgruntled clients who didn’t get the verdict they had hoped for. I realize that having a social media site puts many things outside our control. I hate to sound like Batman here, but it becomes imperative to harness the power for good, not evil. Rather than viewing a Facebook page as a platform for criticism and judgment, think of it as a place where an attorney or a firm may publicly respond to certain critiques, reach a broader audience, and establish itself as a practice that listens to its consumers and addresses their concerns head-on.

Then there’s the part about how it is only a matter of time until everything—absolutely everything—is done online. When that happens, those law firms and attorneys that were forward-thinking enough to establish a social media presence early in the game will be able to transition seamlessly. Those who fought social media tooth and nail, ultimately to no avail, will scramble to create some semblance of a social media presence. This is when mistakes will happen and social media will be managed improperly, resulting (in my estimation) in precisely those things people are worried about today. There is every reason in the world to begin not only accepting social media, but also thinking about how its power can better our profession.

As I often tell my clients, social media is a bus. It’s coming, and you will have a handful of opportunities to get on that bus before it runs you over. Policies like that of the Delaware Circuit Court of Indiana, which attempt to ban participation in social networking sites, are feeble efforts to construct a roadblock (or perhaps remove a portion of a bridge) in the bus’ path. I encourage those of you who haven’t seen “Speed” to go to YouTube (like, the social media site) and type in “Speed bus jump scene.” I think you’ll get my point. D

 

Nicole Mundt

 

Nicole Mundt works in sales and implementation for a social mediacompany focused in health and wellness (cafewell.com). When she isn’t educating clients on the benefits of social media, she’s running, blogging (thetwelvestepprogram.blogspot.com) or throwing the ball for her chocolate lab, Stout.


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