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November 2, 2011 7:03 PM

The Tweet That Roared: Lawyers and Law Firms Navigate Social Media Land Mines

Posted by Sara Randazzo

"For Halloween this year, I am going as a sensationalist overblown media story."

The message, sent out via Twitter Monday afternoon by Jill Filipovic, sums up in 79 characters a week and a half during which the Kramer Levin Naftalis & Frankel litigation associate and frequent tweeter saw her name pop up everywhere from the Daily Mail and Gawker to ABC News and the New York Post—and not in connection with a victory in court. 

The overblown media story to which Filipovic referred began, coincidentally, on Twitter. "Just unpacked my suitcase and found this note from TSA," Filipovic wrote on October 24 in a tweet that also included a picture of an airport security tag with "GET YOUR FREAK ON GIRL" scrawled along one side. "Guess they discovered a 'personal item' in my bag. Wow."

It didn't take long for the Transportation Security Administration agent's note about Filipovic's "personal item"—a vibrator—to spark outrage across the Internet, with bloggers and commenters of various stripes complaining sharply about the TSA's apparent lack of respect for personal privacy. (Filipovic's tweet also attracted more than one snarky comment about the packing of sex toys in one's luggage.)

By last Friday, the TSA had reprimanded the agent in question, and Filipovic had had it with the entire affair, writing a post on Feministe—a blog to which she regularly contributes—that aimed to dispel the notion that she should have seen the media storm coming.

"I've tweeted more than 7,000 times--about funny travel stories, and actually about vibrators too," 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."

But should a lawyer at a large law firm ever tweet about vibrators, or anything else of such a personal nature, even when doing so doesn't grab widespread attention?

It's a question likely to come up more often as law firms grapple with where to draw the line when it comes to how their lawyers use social media within a business culture that traditionally leans more toward discretion.

Blogs, LinkedIn, Facebook, Twitter—for risk-averse lawyers at reputation-sensitive firms that are conscious of their ethical obligations, each social media interaction can present as many challenges as benefits. While most firms either have some kind of social media policy in place or are in the process of developing one, press representatives at a random sampling of Am Law 200 firms contacted by The Am Law Daily were hesitant to speak about specific policies, and none would talk on the record. 

For her part, Filipovic responded to an Am Law Daily interview request with an e-mail message that read, in part, "I appreciate your interest, but I really just want to move on and I'm not talking about this any further. I'm also particularly concerned about my employment at this point and am trying to leave my firm entirely out of any discussions."

That concern appears to be unwarranted.

Jody Maier, Kramer Levin's chief marketing officer, said in an e-mail that the firm neither encourages nor discourages its employees "from blogging or otherwise discussing their personal lives." The firm does have policies—some of which apply to social media—that prohibit discussions about firm business or clients. However, Maier said, "To our knowledge, those policies have not been violated." Asked if Kramer Levin might consider revisiting those policies as they relate to its lawyers' social media behavior when it doesn't involve discussions of firm business, Maier said the firm is "comfortable with our existing policies."  

So far, there have only been a handful of public controversies involving attorneys' online behavior. In one instance, an American lawyer working as an Allen & Overy associate in Moscow lost her job in 2009 after publishing racy installments of a sex-themed novel on the Web using the pseudonym Deidre Dare (her actual name is Deidre Clark).

In a subsequent interview with The Telegraph, Clark said she was surprised the firm fired her, adding that her online postings hadn't involved firm business or clients in any way. Clark sued Allen & Overy in New York state court in June for wrongful termination; a review of court records shows that the suit is pending.

Earlier this year, Akin Gump Strauss Hauer & Feld partner Paul Mirengoff kept his job, but stopped writing for a conservative political blog he helped found, Power Line, amid a controversy over a post he wrote criticizing a Yaqui Indian tribal prayer delivered before a memorial service dedicated to victims of the Tucson mall shooting. Mirengoff's post drew the ire of Akin Gump American Indian law and policy partner James Meggesto, who, along with Akin Gump chairman Bruce McLean, expressed his distate for the commentary on the firm's Web site. Mirengoff later publicly apologized and announced he would no longer contribute to Power Line.

Other lawyers appear to have created a more successful balance between their social media and law firm lives. Sullivan & Cromwell corporate partner Frank Aquila, a New York lawyer whose name appears on many of the firm's largest mergers and acquisitions matters, including InBev SA's $52 billion purchase of Anheuser-Busch and British Airways's merger with Iberia, has tweeted more than 9,000 times since joining Twitter in 2008.

So far, Aquila says, none of those tweets—which cover everything from his love of the New York Jets to the latest development in Greece's perilous financial situation—have prompted complaints from the firm or its clients.

"The key from my perspective is that lawyers should not be tweeting or saying anything in social media or blogs that they wouldn't otherwise be saying or writing in any other environment," Aquila says, adding that he follows one fundamental rule: If he even has to pause and think about whether something he is about to tweet could affect a client, he doesn't tweet it.

John Quinn, the outspoken managing partner of Quinn Emanuel Urquhart & Sullivan, is another active Twitter user whose tweets run the gamut from the firm's latest trial win to Quinn's parental pride about his daughter's medical school accomplishments. One tweet did get Quinn in trouble with a judge, who questioned why the litigator was announcing via Twitter, "Winklevoss twins lose again: QE payday cometh" when details connected to the subject of the tweet—a fee dispute between the firm and its former clients, Facebook Inc. rivals Cameron and Tyler Winklevoss—was under seal.

Kevin O'Keefe, CEO and publisher of Seattle-based legal social media consultancy LexBlog, says many law firms are grappling with how much control they should exert over their lawyers' social media behavior.

"There's no question that exactly that question has come up with larger firms," O'Keefe says. In his view, the correct approach is not to create more policies, but to educate all sides on the implications that could come from social media use, whether attorneys are using the firm's name or not.

"Law firms would struggle to say nothing you do in your personal life affects your professional life," O'Keefe says. "It's not as easy as that."

For Filipovic, who, according to her Kramer Levin bio, studied journalism and politics at New York University and graduated from NYU School of Law in 2008, the incident doesn't appear to have slowed the frequency of her tweeting. But it does appear to have had some effect. As she wrote October 25: "Lesson learned: Don't tweet anything you don't want to appear on The View. #FML."

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