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Does This BigLaw Social Media Policy Go Too Far?

By William Peacock, Esq. on December 10, 2013 | Last updated on March 21, 2019

Employers need social media policies. After all, pretty much everyone is on a social network today, even my luddite stepfather, who refuses to carry a cell phone, yet has Google+ and LinkedIn profiles. And the combination of social media, search engines, and blogs writing about lawyers makes it easy to find and magnify the biggest blunders lawyers make online.

It's no surprise then that BigLaw firms, such as Milbank, have social media policies. And while Above the Law's Joe Patrice compares the firm's policy to the PATRIOT Act, we'll have to respectfully disagree.

In fact, the policy's provisions seem relatively reasonable.

The firm requires the supervisor's and risk management's approval before using social media or blogging on behalf of the firm.

Would any business allow an employee to invoke the company name on social media without running past the company's lawyers (or risk management)? This covers the firm's rear-end, as well as the employee's, as there are a number of ethical and professional considerations to keep in mind when blogging, tweeting, or otherwise interacting online.

The firm also requires prior approval before employees discuss legal subjects online, and prohibits providing legal advice, discussing fees, or entering into attorney-client relationships online.

Why? Bad advice by someone affiliated with the firm reflects poorly on the firm. Without the necessary "this does not constitute legal advice" disclaimer, and if firm employees are soliciting clients online (ethics red flag!), the firm is exposed when someone relies upon a tweet's worth of advice, or believes themselves to be represented when they are not.

No advertising via social media, or using the word "expert" or "specialist."

Again, reasonable. The firm wants to control its advertising, brand, and image. And the usage of terms like "expert" and "specialist" are fraught with state ethics questions. (See the LinkedIn endorsements debate and the Florida Bar's controversial opinion.)

Administrative employees shouldn't hold themselves out as lawyers.

Duh.

Avoid disparaging the firm, "except that this is not meant to prohibit you from discussing the terms and conditions of your employment as permitted by applicable law."

Boom. The firm's labor law folks are on it. A series of NLRB decisions over the past year or so have invalidated companies' social media policies as overbroad when they lacked an exception to "no disparagement" clauses for discussing working conditions (wage, hours, etc.)

(Sidebar: Our Legal Tech center has great tips for drafting social media policies that comply with these NLRB rulings.)

Firm policies, including the Securities Trading Policy, the Confidential Information Policy, etc., apply to all Internet use, including social media.

Of course they do. The last thing a law firm needs is trouble with the SEC or a lawsuit for divulging sensitive client information online. The policy also prohibits disclosure of any client-related information, trade secrets, etc. Again, all standard.

Disclaimer required: personal opinion, not the firm's.

Heck, I'm a blogger and I'm even required to have such a disclaimer, though we get a bit more leeway on the language. Firms don't want lawyers' tweets, such as a rage tweet directed at SCOTUSblog, to be mistaken for the firm's view, rather than the individual's.

The firm may be watching, and may request that employees take down offending material.

Of course they're watching. They'd be irresponsible not to. In fact, all major businesses should have social media alerts set up to ping them whenever the firm/business is mentioned online. It helps to contain social media catastrophes.

We'd suspect that this provision is what irked Patrice. If the firm was ordering staff to take down personal content, unrelated to business, such as a glowing review of the latest Carly Rae Jepsen album, that would be going too far. But somehow, we doubt that would happen here, especially since the firm notes that the policy is "not intended to prohibit or dissuade lawfully protected communications."

Of course, this is only my opinion (and not that of FindLaw, Thomson Reuters, or President Barack Obama). What are your thoughts? Is this policy reasonable. Speak up, with a disclaimer, on LinkedIn.

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