Law firms certainly have an interest in protecting their reputations from all threats foreign and domestic. By domestic, of course, we mean the damage that a lawyer can cause by posting dick picks on any of the multiple social media platforms out there. Social media snafus can reveal professional lapses or dangerous biases.

And if a lawyer embarrasses themselves on the Internet, there are people with high-profile, industry-leading publications that might just write about it.

But social media policing can also degenerate into paranoid intrusions into the private lives of lawyers. One firm has a social media policy that reads like the PATRIOT Act — at least to the extent it seems to provide the firm open-ended authority to govern the social media profiles of its lawyers….

Most firms have some form of social media policy (now that firms are starting to realize it’s not going away), even if it’s just folded into vague professionalism standards. But Milbank introduced a tight policy back in May to address what its lawyers do on the Internet. It even implicitly advises them not to talk to publications like Above the Law. That’s probably why we didn’t get wind of this until just now, which is actually pretty impressive compliance for Milbank.

The Firm is aware that its lawyers and administrative employees may wish to participate in or contribute content to social networking websites, weblogs, internet diaries, tweets, wikis or other publicly accessible Internet forums (“Social Media Sites”) for both business and personal use. Unfortunately, Social Media Sites may create opportunities for personal and professional embarrassment, breaches of confidentiality, real or perceived violations of privacy and identity theft, and the risk of publishing views or information that may be inconsistent with the interests of one or more Firm clients, among other hazards.

This is all true and Milbank is right to flag it for its lawyers. That said, the language “may be inconsistent with the interests of one or more Firm clients” is a little troubling. The policy correctly notes that even “the personal activities of lawyers and administrative employees on Social Media Sites may be misperceived as Firm-authorized,” but how far can Milbank go in labeling private statements as candidates for misperception? Can Milbank hold it against an idealistic lawyer bad-mouthing offshore drilling and promoting new legislation/regulation when the firm represents large energy concerns? One would hope not, but the policy reads like that’s a real possibility.

A lot of the specifics are grounded in common sense: don’t host a website named after the firm, don’t dispense legal advice over social media, don’t divulge confidential or privileged information, etc. All stuff that should go without saying, but a written policy is usually a prudent move. There are two provisions that deserve more focus:

No lawyer may advertise via Social Media Sites or use the words “expert” or “specialist” or words of similar import to describe his or her practice on Social Media Sites.

That seems to run contrary to the entire point of Linkedin. That said, lawyers should focus on this issue even without a policy like this one because ethics opinions are starting to raise serious questions about the propriety of identifying your legal “Skills & Expertise.” Just clicking through and accepting every endorsement some connection gives could be putting you in ethical hot water. Milbank may be doing its lawyers a favor by reminding them to police their profile a little more closely.

Although the Firm strongly discourages any lawyer or administrative employee from disclosing his or her association with the Firm when participating in discussions or asserting opinions on a Social Media Site, if a lawyer or administrative employee discloses his or her association with the Firm in such circumstances, a disclaimer along the following lines must be included: “This material/opinion is my own and does not purport to represent the positions, strategies or opinions of my employer.”

Most Facebook profiles identify the person’s current employer. In that case, wouldn’t a person be “disclosing his or her association with the Firm when participating in discussions or asserting opinions” in every conversation they have on Facebook? I’m guessing this disclaimer isn’t added to every post where a Milbank associate posts about the One Direction concert they went to last night. Even though that’s horrifically embarrassing for the firm and everyone else connected to the lawyer.

The Firm reserves the right to monitor the activities of lawyers and administrative employees on Social Media Sites and may at any time request or require the removal of any posting or content on a Social Media Site. If conduct is in violation of Firm policies and/or is seen as compromising the interests of the Firm, the Firm may take appropriate disciplinary action.

That’s probably just meant to cover Milbank’s bases, and not a declaration that Milbank has NSA screeners checking out every Pinterest post that some Tax associate just put up. Still, welcome to the Panopticon of One Chase Manhattan Plaza! Your employer may be checking up on your private life right now and preparing “disciplinary action” for posts the firm — and the firm alone — decides cast the firm in a negative light. Or maybe they aren’t checking up. You’ll never know! So go ahead and delete those pictures from the Halloween party. You know the ones we mean.

So what do you think about this policy? Does it earn your “Like” button?

The full policy is reproduced on the next page….


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