Web 2.0 – business opportunity or unacceptable risk for lawyers?

October 17, 2007

“Conservative” and “lawyer” often appear in the same sentence when describing the legal profession’s inherent resistance to change. Despite our scepticism when presented with new ways of doing business, there are a number of law firms that are doing their best to dispel the stereotype and embrace the new concepts and technologies that are currently being used by the so called “Web 2.0” businesses.

Web 2.0 is a reference to the way in which we use the World Wide Web rather than a description of any great technological change. The technologies that underpin Web 2.0 have largely been around since the first dotcom boom in the late 1990s. What has changed is the way people interact and collaborate online through wikis, blogs, forums and social networking sites. The Web has moved from pushing out content much like a newspaper to a multi layered two-way conversation. This new found interactivity and interconnectedness has become known as the Web 2.0 phenomenon. It is this phenomenon that is being embraced by a number of progressive law firms as a richer way of engaging with employees and clients.

Blogging is a key component of the Web 2.0 phenomenon. Although blogs traditionally functioned as online diaries, they are now used in all manner of ways. The business community have jumped on the blogging bandwagon by using blogs as a means of "getting around the filter" and pushing messages directly to the public and their customers. Now it’s the turn of law firms who are using blogs to communicate with their staff and clients. This article examines the issue of blogging from the perspective of a law firm; highlighting the rationale for blogging, the benefits and the risk factors.

So far, there are not that many law firms that publish their blog externally (i.e. a blog aimed at an audience outside the firm such as clients). Freeth Cartwright LLP blogs under the brand “impact” on intellectual property and technology law issues. Similarly, Mills and Reeve operate under the “naked law” banner blogging on the same issues. The perceived benefits of external blogs are that they represent a more effective profile raising activity than simply pushing out content through more traditional channels such as an article in a journal. Lawyers are sages and pontificators of expert information, and engaging an audience in debate through a blog on issues on which they are well versed allows expertise to be demonstrated to the target community. This of course assumes that the target community is comfortable both from a cultural and technological perspective to discuss issues online or in the “blogosphere”. This is perhaps why the law firm blogs that are in existence seem to be focused on the tech community.

Stimulating audience participation is a much richer way of engaging with clients and contacts. Concerts where you are encouraged to sing along by the lead singer turning his microphone to the audience almost certainly enhances your experience of the event. Admittedly, it is a stretch to compare a legal article or content to a rock concert. Perhaps, a better analogy is the comparison between a legal lecture and a debate; the latter is certainly more likely to stop me reaching for a strong coffee. Communicating legal know-how through a blog is certainly a more engaging way of interacting with your audience; it is the equivalent to the turning of the metaphorical microphone to the audience. The higher echelons of management in Reuters, L’Oreal, Sun Microsystems, Microsoft,
General Motors and Benetton all maintain a blog as a way of communicating with the various stakeholders in their respective businesses and industries. There are though a number of issues (commercial and legal) with blogging and this is perhaps the reason why we have not seen the same enthusiasm for law firm blogs as we have seen with corporate blogs.

The perception of blogs is that you are required to say something controversial in order to stimulate debate and interest. This necessity to be controversial runs somewhat counter-culture to the collective personality of the legal profession. Lawyers trade on the back of a reputation for being a “safe pair of hands” and trusted advisers. This does not sit comfortably with contentious blogs or online debates.

This is perhaps the reason why many of the successful legal blogs are written on an anonymous basis. I can see that interest can be sparked by a blog on hot political or sporting issues but it is difficult to stimulate debate on the merits of the changes to the companies legislation, for example. For a blog to be successful it requires a careful choice of subject to interest your audience. Many of the law firm blogs that I’ve looked at have failed to stimulate any comments from their users. This could create a negative rather than positive impression. Again, imagine the rock star turning the microphone on the audience and getting no response; this does not reflect well on the band or the song.

The legal risks with blogging are centred around content liability. With the perceived need to be controversial and the more informal style, it is easy to get carried away and say something which could lead to unwanted legal liability or publicity. This could be in the form of reproducing work without proper authorisation (copyright infringement), defamatory statements or breaching confidentiality whether incidentally or otherwise. We also have our professional rules to abide by. Having said this, it does seem a remote possibility that a lawyer could fall foul of these rather obvious rules and the firms that are currently blogging have presumably taken this view.

It may be that they have set parameters and rules within which employees can operate to mitigate this risk. Although it is entirely understandable why the take up of external blogs by law firms has been slow, I can see this changing in the future as firms develop ways to blog within their comfort zones. Ultimately, this is likely to be led by the “myspace” generation who become the lawyers and clients of tomorrow. They will expect to communicate and interact online and firms will need to provide them with the environment within which to do this.

Although the take up of external blogs has been slow, where these are really being used to great effect is internally as a way of facilitating communication and discussion between staff members. Allen and Overy have embraced the opportunities presented by blogs and similar Web 2.0 concepts. Allen and Overy have developed approximately 30 internal microsites for specialist practice areas to share information and know-how. There are obvious benefits to being able to share expertise in this way, particularly, when you are in a large International firm. Rather than asking the usual person you would go to for advice, you can post a comment or question and suddenly have access to the expertise and experience of 30 lawyers instead of 1. The ability to share know-how in this way is invaluable for a law firm. Although there may be a cultural shift required for this to work, the experience of Allen and Overy suggests that this was a fairly easy transition to make.

The success of internal blogs and forums has been driven by a number of factors. In contrast to external blogs, you already have a captive audience; a mature community that is ready to comment and share ideas. Quite simply, it is easier to stimulate debate on a legal topic amongst lawyers who are interested in that topic. It is no coincidence that Allen and Overy’s success is in part due to the application of Web 2.0. technologies to specific practice areas. One can particularly see the value of blogs and forums in the context of “greenfield” law where there have not yet been any cases or precedents. The fact that the blogs or forums are internal reduce the risk of any external organisational embarrassment or liability. It may also be the case that if the blog or forum relates to a small community such as team (rather than the whole firm) employees may feel more comfortable contributing. This helps create an informal ambience which has been so crucial to the Web 2.0. phenomenon.

However, herein lies the principal risks for employers; someone saying something that they should not. One of the benefits of blogging and online forums is that it encourages individuals who might not ordinarily contribute to a group discussion - because of shyness or a lack of confidence – to participate due to the more relaxed and less personal environment. But this environment can also encourage unsuitable and unwanted comments. We have all read the embarrassing email stories involving law firms (see “ketchupgate” at Baker McKenzie and “yumgate” at Norton Rose which were published in the National press). Email use (in some ways) is analogous to Website participation - email is less personal and offers a certain degree of informality. Would these email stories have happened in an offline environment? Probably not. The analogy goes further in that a comment on a Website is “semi” permanent and exists in a tangible form (as is the case with email).

It is possible for comments on a blog or online forum to amount to acts of discrimination and non-discriminatory harassment. Where an employee is using the resources provided by the firm and making comments during work time, then the firm could be vicariously responsible for the acts of discrimination and non-discriminatory harassment by its employee. In order to deal with this issue and mitigate the risk of liability for harassment actions, employees should be made aware of the fact that they should not be making discriminatory and bullying type comments. Law firms should be introducing or updating HR policies to reflect this. Employees need to have a clear idea of what is and is not acceptable conduct. This is much the same way as the email use has been dealt with. This is important not only from an organisational standpoint, but also in terms of showing that an employer has taken reasonable steps to protect employees from discriminatory and bullying type comments.
The new statutory grievance procedure could be triggered by a post on a blog or internal Website. The definition of a “grievance” is wide and employment tribunals have interpreted this definition liberally in order to ensure that employees are not barred from bringing claims related to the grievance. Given this, it is possible that a blog could constitute a “grievance”. Once a grievance has been raised, the firm is required to follow a fairly prescriptive procedure to deal with the alleged grievance. Failure to follow this could lead to an increased damages claim. It is difficult for HR staff to police internal forums, Websites and blogs to check for grievances. Therefore, any terms of use or house rules should make clear that blogs and intranet postings are not the correct forum to raise grievances.

One can see the scope for the abuse by employees of blogs and internal online forums and the consequential risks for employers. However, the risks can be kept to a minimum by taking simple measures such as the introduction of house rules and the updating of existing HR policies to cover these new activities. If the internal site is highly focussed with defined parameters (such as on a specific area of law rather than more general sites where topics are chosen by employees), then the scope for abuse is much reduced. It is difficult to post an inappropriate comment in the context of a specialised legal discussion.

Despite the risks and the limited uptake, blogging and related Web 2.0 technologies are here to stay (well at least until Web 3.0). I imagine that it will take some time before we see widespread use of external blogs by law firms. Perhaps, when we have third party ownership and firms are expected to communicate with their shareholders in the same way as other industries or when the “myspace generation” - for whom online interaction and collaboration are second nature - become the decision makers. The real present day benefits of Web 2.0 technologies lies in their application internally as typified by Allen and Overy. In law firms, knowledge and expertise is widely dispersed amongst the lawyers who make up the practice. Blogging and online forums represent an effective way of sharing and improving this knowledge and expertise for the greater good of the firm, which really is Web 2.0.

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