Monthly Archives: November 2011

Leveraging Your Reputation: Time for a Facebook check

Tom Ciesielka is President of TC Public Relations (www.tcpr.net). Tom has over 25 years of marketing and public relations experience, working with individual lawyers and midsize law firms. He is also a former board member of the Legal Marketing Association in Chicago and has spoken at Chicago Bar Association CLE programs. Reach him at tc@tcpr.net.

People have been using Facebook for a while, but there are always some people who forget to be careful about what they post and who they’re friends with, even if they’re experienced attorneys.

Recently, a partner at a law firm had a close call when a reporter got a photo from the attorney’s Facebook page, and ended up using it for publication. There was nothing controversial about the photo, but I’d say it was a close call because the attorney had no idea that the reporter had been digging around Facebook to find a photo, and what if it was embarrassing?

So this serves as a lesson: Even though you might post something that seems benign, you have to be careful because even the media can end up using a photo for their website or publication if you haven’t provided one, or if they’re not satisfied with what you’ve submitted. The photo could simply be unflattering or worse. Just check what you have, or don’t post any personal photos at all.

Think about your profile: Is there anything you don’t want anyone to see? Or have you friended people to whom you don’t want to expose your personal information or photos? And what about your status updates or comments you’ve made on other people’s pages?

If you want to see where your name appears on Facebook, in addition to a Google search, try Foupas, which is a Facebook search engine. If a fan page or someone’s personal page is public, your name will show up. Sometimes people tag us in photos and we’re not aware of it until we do a search.

Avoid a public relations disaster: check your photos, remove anything you don’t feel comfortable with, and make sure your privacy settings are locked down and that you actually know all your friends. You can also go a step further and delete your Facebook account, and then create a new one. However, if you delete your account, you’ll have to get a new username because your old one will be retired.

So be careful out there, and consider all aspects of your public image, whether it’s on Facebook or anywhere else on or offline.

Turning a blind eye….

Nancy Glazer is manager of Legal Launch LLC.  The goal of Legal Launch LLC is to provide uplifting, career counseling for 3Ls, recent law school graduates and experienced attorneys.  Nancy offers her clients endless ideas and possibilities to help land them the right job in a competitive market.             

I am ashamed to admit this.  There are days when I get off the train at Union Station, see/hear someone ask me for breakfast money and then cringe when I discover that I have no singles or quarters in my pockets to give.  Sometimes I have time to stop and dig for money.  Sometimes I am running late and can’t stop.  It is at these times that I choose to look away, no, run away, from the hungry stranger as I hear his plea.  It doesn’t feel good.

There are only a few feelings in my day-to-day life that hit so low.  I am embarrassed and ashamed of myself on those mornings; it is ridiculous that I can’t manage to give a buck to someone who was forced to cross a line of dignity somewhere along his way.   Guilty of being unprepared, potentially late and consumed mentally with all the day’s business, I choose to keep going on some of those days.  It’s low.

“Turning a blind eye” is big news these days.  Anyone who pays attention feels disgust with all the could-be chinks in the Penn State, Syracuse or Anywhere University’s big football business armors.  The folks who saw, the folks who heard, what did they do?  What were they thinking?  How did they arrive at the stream of decisions they made?  Did they conveniently store the knowledge that they had in some out-of-the way compartment of their minds?  Did they pretend that they knew nothing significant?  Did they come up with justifications for their silence, as I have done on my late and ill prepared mornings at Union Station?

Readers of my blogs know that I am often calling out to mid- and senior attorneys to take 15 minutes to respond to the “pleas” of recent law school graduates.  While more experienced attorneys know, yes, we all know what new grads are ultimately looking for.  While you may not have an actual position to offer to a newly-minted and jobless attorney, you do possess extremely valuable golden treasures, your own life experiences.

It’s simple.  You know what you do every day.  A new law school grad does not.  Fifteen minutes recapping your weekly schedule in your practice may actually be fascinating to a new lawyer.  Like most people, she is still trying to figure out what she wants to do when she grows up.  Hearing about your clients, the files on your desk and floor and your life experiences are golden nuggets to law graduates trying to learn how law is practiced in the real world.

Lest you still think you have nothing of value to offer a new grad, think about the people you know.  Your law school friends and legal colleagues may work in firms or companies where a law graduate may eventually want to work.  These firms, companies or organizations may be considered gold mines to a novice lawyer hoping to make a connection and build a relationship with someone working  there.

Back to my failings near Union Station … No doubt, my inactions are horrendous. After the wakeup call we’ve all had after Penn State, I know that I will start to be better prepared with ready money as my train approaches the station. I don’t ever want to turn a blind eye to anyone’s plea.

I am hoping that the Penn State scandal will make the Chicago legal community more aware, more sensitive, too, to the plight of recent law school graduates.  When a new law grad asks you for help, realize that the help you can give is simple; she is getting to know you, what you do and who you know.  She’s not asking you for a W-2.   I hope that the 15 minutes you spend with her gives you a good feeling, too, as you coast back into your corner, side or even interior office.

Please understand.  I am not trying to compare the problems of subsistence of those begging for breakfast money with the plight of unemployed law school grads.  Obviously, the needs of these two groups are different.

The one thing these groups do share is that they both need help.   I will attest, it gives me the lowest of lowest feeling when I look the other way …

What you say

Jim Martinez, a former reporter and editor, has spent years working at some of the world’s largest public relations firms atoning for the crises he caused.  He can be reached at jim@rightstorygroup.com.

Every time attorneys talk to reporters, post a blog or tweet, they face the risk of unintended consequences that can threaten their careers or cases.

In October, Jill Filipovic, a litigation associate with Kramer Levin Naftalis & Frankel in New York, became the subject of national media coverage because she posted a photo on Twitter that displayed a Transportation Security Administration notice stating her bag had been searched.  On it was scrawled a message: “Get your freak on girl.”

Filipovic tweeted: “Just unpacked my suitcase and found this note from TSA. Guess they discovered a ‘personal item’ in my bag. Wow.”

The “personal item,” as it turns out, was a vibrator.  Filipovic had intended her tweet to be a funny commentary on a serious privacy issue.  The unintended consequences were that she became a media starlet whose name appeared around the world and whose story cost someone their job. Reporters covered the story, which in turn led to a federal investigation, the issuance of a formal apology and the suspension and ultimate dismissal of the employee who left the note.

This example of how a casual tweet can result in cascading consequences demonstrates the power and reach of social media.  It also suggests that law schools may not be fully preparing attorneys for all the challenges they can face after they get their JDs.

There’s been some discussion in the profession about whether attorneys should use social media. That’s beside the point.  Social media is a fact of life.  Plenty of attorneys use it.  The real issue is whether attorneys are ready to handle the fallout of a social media post or a passing comment to reporters.

Random comments to reporters can easily find their way into stories.  Stray blog posts or tweets can do the same.  I don’t want to suggest that attorneys set aside their rights, lead monastic lives or refrain from using social media. However, attorneys must carefully and strategically weigh what they say and how they say it because these comments can affect their ability to represent clients or progress professionally.

A spokesperson for Filipovic’s lawfirm said the associate did not appear to violate the firm’s social media policies.  What will only become clear with time is whether Filipovic’s comments will affect her professional advancement.  Will clients want to be represented by the “blogger attorney?” Will the firm want a partner whose personal communications led to a discussion on “The View” and were mentioned in media outlets around the world – in several different languages?

What is immediately clear is that the attorney in this case was wholly unprepared for the unintended consequences of her post.  After the wave of publicity, Filipovic wrote: “I think it sounds incredibly naive to suggest that every single time a person puts something on Twitter, they are looking for national attention and to be widely known for that one tweet.” What’s naïve is assuming your tweet won’t be noticed.

Lawyers need to get savvier about traditional and social media.  They must learn the new rules of communication.  And they need to anticipate the unintended consequences.

The old and the new; the paper or plastic debate is moot

J. Nick Augustine, J.D., is the principal of Pro Serve Public Relations, a PR firm for law, finance and small business professionals. Nick is experienced in law, business, entertainment, public relations, and his Secured Solo Practice™ agency model. Nick enjoys sharing career growth, strategy and experience with legal job seekers and attorneys in transition.

The frequency of change in law stresses us out. For this holiday season my gift to you are my thoughts on adapting to change while maintaining steadfast practices. The theme I see most frequently is the change in form that retains the substance. To be successful we need to be able to adapt to change without compromising sensation, perception and memory.

Black letter law has been evolving for hundreds of years. Our laws ebb and flow with changes in society, policy and the nature of the times. It seems like there have been vast changes to law in the last decade; moreover, the practice changed the most, and technology created a stir. If you have ever tried researching and reviewing on the train, reading pdfs on a small BlackBerry screen you would long for an iPad, as I complain, I curse the ability to continue doing work regardless of time, place or space.

A friend recently suggested that my BlackBerry and I were out of date Gen Xers, too stuck in our ways to adapt and embrace change. While waiting for the train I posted a query on Facebook as to what new devices suited my needs and blended the full media options of the new Androids while still allowing me to type on a keyboard. My cousin, Emily, a busy lawyer was the first to tell me about a perfect solution. I thought – “How great is this, let my peers pre-shop and test devices for me!” You see, I have been embracing change and don’t realize how blended I am in mixing the new with the old.

At my office, you’ll find me with not the very latest, but very recent technology, and piles of paper. I went back to paper when learned more about my cognitive process. If I don’t print an important e-mail I will likely forget it if I don’t do calendar reminders. Who has the time to calendar everything? When I sift through my client e-mails I see my hand-written notes and quickly remember what I need. This is how I process and learn information – it looks different from the methods for transmitting information.

Looking further, I thought more about how we receive and feel about information processing. Today, when I meet new people I find valuable, I send them a professional letter on the very best stationery. I sit at a wooden desk and fold the pages perfectly. I still read print newspapers – and I scan and save the articles I like, using keywords and techniques for instant retrieval. I am a visual person and learn from viewing, writing and manipulating the written text. I tried going paperless and had more trouble than I wanted to admit.

The takeaway is that you can embrace all the new things while holding on to tried and true methods of learning, communicating and of course, practicing law. Just because something is new, does not make it better by definition. Ask the half of my office that looks 1930s blended with its 2011 technology. You’ll never take my antique globe, real wooden desk and print news.

Magic words for dealing with non-legal media

Debra Pickett is President of Page 2 Communications (www.page2comm.com).  A former newspaper columnist and television commentator, Pickett offers consulting and training to law firms and lawyers who deal with the media.  Reach her at deb@page2comm.com

When I was a reporter at a big daily newspaper, I was often shocked by how willing people were to talk to me.  I’d call, introduce myself and then, pretty much immediately, start asking questions that, under most circumstances, should have earned me a slap across the face.  Instead, people were consistently forthcoming, helpful, even eager to share their stories with 2 million strangers.

There was one exception: lawyers.

Their responses to my questions seemed to fall into two categories: complete stonewalling or hyper-aggressive “spin.”  In either case, the quotes I took from them did little to convey their clients’ points of view, which, naturally, did not make them more willing to take my calls in the future.  Nor did the dreaded “refused to comment” or “couldn’t be reached for comment” lines my editors and I put in to stories when we didn’t get anything we could use.

By contrast, many of those same attorneys seemed to have great working relationships with more specialized media outlets, like the Chicago Daily Law Bulletin.  Stories in those publications almost always featured great quotes from lawyers and lots of explanatory detail.  So, what was the difference between my approach, writing for the general population, and that of the reporters whose audience was grounded more deeply in the legal community?  And why, more importantly, did the mainstream press as a whole seem to have such a contentious and unconstructive relationship with the lawyers who were making news?

Journalism, like litigation, is an antagonistic proposition, sometimes more than it needs to be.  From my vantage point as a reporter, with no background in law, the reticence of the attorneys I interviewed, especially their strict adherence to the rules of professional conduct around trial publicity, looked like just so much posturing.  There’s a certain ego rush involved in being the seeker of truth, and it’s all the more intense when it seems like someone is withholding information.  It’s tantalizingly easy to make a lawyer look like a bad guy.

My perspective changed when, after leaving journalism, I started working with attorneys who, along with their clients, recognized the need to include strategies for mass communication in their work, particularly when defending clients in labor and environmental cases.  They were as flummoxed by the apparent hostility of the non-legal press as I once had been by some of their colleagues’ refusal to fully answer my questions.

Working within the ethical constraints of Rule 3.6, which governs trial publicity, our opportunities and limitations were clear: no public statements that could threaten the fairness of the proceedings; only statements of basic facts and claims and whatever might be necessary to protect a client from the prejudicial effects of recent adverse publicity not initiated by their side.

This left lots of room for getting the facts out to interested members of the press and public.

The big challenge was that general interest reporters and community members – those without legal backgrounds and training – often asked questions that couldn’t be answered fully without overstepping Rule 3.6.  So the most important element of our communication strategy was how to handle these inquiries constructively.

We found that three phrases: (1) thanks for calling (2) when’s your deadline and (3) happy to help, go a surprisingly long way in re-setting the tone of the interactions.  “Thanks for calling” immediately creates a sense of rapport and the possibility that your interests – namely, getting the facts out – might be allied.  “When’s your deadline?” conveys consideration and camaraderie, and an inclination to be helpful.  And, finally, “happy to help,” seals the deal: though there are some things the attorney is not able to say at this time, he is doing what he can.

In between the nine magic words, over the course of a brief interview, even if the attorney couldn’t answer every question in as much detail as the journalist wanted, she could usually offer some useful information, such as scheduling and next steps, and, most importantly, could begin to establish a positive relationship with the reporter covering the case.

Reporters for legal publications knew what they could ask to get these answers, but others did not.  They needed a little help.  And that help made all the difference.  Nine magic words made it happen.

Social media and discovery

Marty Dolan, principal at Dolan Law and his associate Karen Munoz represent victims of wrongful death and personal injury. His column “Law and Wellness,” appears in the Chicago Lawyer and her column appears regularly in the Law Bulletin. This week’s column is written by Karen Munoz.

Last week’s post was a brief discussion of some of the Do’s and Don’t’s of using Twitter for lawyers. This week’s post is also about social media and the law. Anyone who has ever been involved in litigation where Facebook or other social media records were sought understands that it can be a very messy process. This post looks very briefly at a few of the very many issues that discovery of social media records presents.

1. Application of the SCA

The Stored Communications Act, among other things, limits the discoverability of electronic communications stored by different types of Internet service providers. It generally prevents the relevant service providers from disclosing their users’ electronic communications without a search warrant. So, does the SCA apply to social media?

A recent 9th Circuit decision (Crispin v. Christian Audigier, Inc.) reversed the decision of the lower court and ultimately held that social media sites were covered by the SCA. The judgment engaged in a detailed analysis of the differing types of privacy interest that arise with different types of communications on the social media sites (e.g. private messages versus wall posts on Facebook). While the case is far complex than it is presented to be in this post, it also leaves some questions open concerning the more “public content” like wall posts.

2. Other Approaches

Some courts look instead to the basic principles of evidence like relevance. In a recent New York Appellate Court judgment, the court rejected a defendant insurance company’s demand for authorization to see the plaintiff’s Facebook records, labeling it a “fishing expedition.” The case involved a personal injury as a result of an auto accident and the plaintiff, having fully recovered from the motorist involved, sought to recover underinsurance coverage from her own carrier. The plaintiff’s carrier then sought access to her Facebook records in the hope of finding some evidence that the plaintiff was exaggerating her claims. However, the court held that the defendant insurer “failed to establish a factual predicate with respect to the relevancy of the evidence.”

Another New York Appellate Court did allow discovery of Facebook records in similar circumstances where the defendant did establish a factual predicate. In that case, the plaintiff’s public Facebook profile picture seemed to conflict with the plaintiff’s claims about being confined to bed as a result of the injuries sustained and the court granted the defendants access to all the plaintiffs’ Facebook records.

While discovery of further material which would potentially disprove the plaintiff’s claims is no doubt relevant, the opinion raises a number of other issues. Firstly, it almost completely ignores the question of whether the SCA applies to social media. Secondly, the judgment granted discovery of everything on the plaintiff’s Facebook account; a lot of this is arguably private information that had absolutely no bearing on the case. And third, the court found that users have no reasonable expectation of privacy in content they upload to Facebook and this conclusion fails to give any consideration to the different types of communication permitted on social networking sites.

So it seems that Facebook discovery battles will continue to be quite messy for the foreseeable future.

Attorneys contribute to PR nightmares

Jim Martinez, a former reporter and editor, has spent years working at some of the world’s largest public relations firms atoning for the crises he caused.  He can be reached at jim@rightstorygroup.com.

There’s an old saying about how any publicity is good publicity.  Well, some publicity can complicate legal representation.  Many attorneys voice frustration that their cases are often dissected in the court of public opinion long before they reach the court of law.

The irony is that a significant share of the bad publicity is being generated by … wait for it … attorneys.

Social media is a great way to market a law practice.  Many attorneys have embraced blogs and other channels to promote their expertise to prospective clients.  It’s impossible to count the number of blogs written by personal-injury attorneys, medical malpractice attorneys and other plaintiffs’ counsel.  All these channels very actively publicize new cases and discuss every development.

No doubt the rationale for the steady stream of blog posts is that they provide a public service by sharing information the media often overlooks.  Obviously, the blogs also drive awareness for an attorney’s legal expertise with consumers who are interested in the topic.

But the consequence is that the flurry of social media can make legal defense challenging by contributing to a superheated media environment that can also pose a threat to the company trying to defend itself.

Consider the story of Tiny Greens Organic Farm, a Central Illinois company that attracted attention last year when it was targeted by the FDA after several Midwestern consumers became ill from salmonella after eating at a popular sandwich chain that used its sprouts.

There was widespread media coverage of the story when it first broke – but it has been kept alive by the significant attention it has gotten from attorney blogs.  A recent search of Google for “Tiny Greens” showed that of the 30 citations in the first three pages of search results, nine were legal blogs, 10 were FDA announcements and articles covering the story.

These kinds of blog posts create real issues – both for the targeted company and its attorneys:

  • They influence public perceptions and can make jury selection difficult.
  • They can threaten a company’s very existence, which has obvious implications for their attorneys.
  • They can lead to unwarranted legal action from consumers panicked into thinking a problem exists where none actually does.
  • They contribute to an environment of mistrust in which many people are skeptical of both businesses and the law.
  • They tend to make the legal profession look like ambulance chasers.

Traditionally, attorneys have tried to separate themselves from publicity involving their clients.  However, in today’s 24-second media environment, it is important to recognize that the only way to protect those clients’ legal interests is by helping them to protect their reputations.  Courtrooms are great for determining the facts of a case, but attorneys must recognize they can help their clients just as much by helping them to balance the damaging chatter that is so prevalent today.

In the case of social media, the only way to balance the spectrum of negative posts is by generating enough positive news and citations to effectively “bury” the bad news.  If that isn’t done, the repetition of social media can reinforce bad perceptions about even the best companies.

To enhance the value they offer clients, attorneys need not become experts in public relations – only recognize the need for that expertise and, in an ideal world, introduce their clients to it.