denotes premium content | May 23 2013 Feature
posted 30 Jun 2009 in Volume 12 Issue 9
Overcoming challenges
Penny Edwards and Lee Bryant explore how law firms are addressing the concerns in relation to the use of social networking tools, including matters associated with establishing the business case and sustainable user engagement.
Keeping up with the pace of technology evolution is a challenge in itself. Not only are the tools different to previous generations of communication and collaboration technology, they are inherently disruptive, and often challenge traditional organisational communication and work processes. Concerns surrounding security, time wasting and reputation management have led some firms to block employee access to online public networks. In other instances, lawyers feel they simply do not have enough time to find out how to use the tools for their work, or are apprehensive that use of networking sites may be a breach of ethics. This article explores the ways in which firms are addressing these concerns, along with matters associated with establishing the business case and sustainable user engagement.
Security and privacy
One of the reasons firms block access to online networking sites is a perceived security risk. They want to avoid the risk that sensitive information will be leaked onto the internet, or they fear that employees may communicate negative information about the firm resulting in bad publicity that may damage the firm’s reputation. While it is true that these sites provide ways for legal professionals to breach client confidentiality, or otherwise offend clients and firms, these problems can equally arise from e-mail, on the telephone or in a wine bar.
Highly conservative and risk-averse attitudes to these ‘new’ technologies are reminiscent of those in the mid to late 1990s, when practitioners were debating whether to take the plunge and implement e-mail or put up a website.1 Instead of weighing risks and learning to manage them, as firms have done with e-mail, instant messaging and the internet, many firms have responded by blocking access to networking sites. Of course, that action carries its own set of risks, as Allen & Overy found out when it was forced to make an embarrassing u-turn on its decision to ban staff access to Facebook after an avalanche of employee complaints.2 When the use of Facebook was being considered at Clifford Chance, a wiki space was set up for the decision-making group. “The policy was then drafted collaboratively and everybody in the group felt that they had had a say”, says Sam Dimond, director of knowledge systems. “It was used as an opportunity to introduce people, some of them very senior, to social software for business purposes.”
Another option for firms not wishing to use public networking sites is to set up networks on their own infrastructure. Allen & Overy separates the use of social software for internal and other trusted communities from the use of such tools on the wider internet, reflecting the different issues and risks. Ruth Ward at Allen & Overy explains that, “Our initial internal work has certainly informed our broader internet experience, but they are created and managed as two different initiatives. We have no specific blogging policies for our internal sites – our normal policies around the appropriate use of communication systems apply to these just as they do with e-mail – and individual site-owners guide and monitor use on their own sites. We have no internal single-person blogs – only group blogs with multiple contributors with an equal voice and a common purpose. And we expressly do not have any ‘chat rooms’, our sites are all ‘workspaces’ with pre-defined business objectives”.
Apart from security, there are also privacy concerns associated with the use of social networking sites. Established sites like LinkedIn and Facebook have policies and automated procedures to stop spam. Contacts can also be blocked or removed if they behave inappropriately. There are also safeguards to protect your profile from being viewed by people you do not wish to have access. But, as always, good judgment should prevail when posting any information to a public networking site, installing applications on your profile page or responding to requests to ‘connect’ from strangers.
Time
Although professional and personal value can be derived from effective online social networking, two key time-related barriers are preventing lawyers from participating, namely:
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Perceptions of time-wasting; and,
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Being time-poor.
Time wasting
Another common reason for blocking social networking sites is the threat of lost productivity. However, this is not a technology issue, it is a trust issue. Unproductive people will find ways to procrastinate whether or not they have access to networking sites. If a firm hires good people, then it should trust them to work in ways that deliver desired results. Use of social networking sites should not be viewed as a barrier, but a facilitator of healthy working practices. Researchers at the
Time-poor
The flip side to time-wasting is being time poor. Many lawyers feel they do not have enough time to invest in learning new tools or to maintain an effective social network. Yet, they may invest considerable time and money networking at conferences and client functions, and miss the opportunity to deepen the relationships by inviting the contacts into a networking group that engages regularly online. They may devote hours to checking and sending e-mails, phoning colleagues, responding to (similar or repetitious) requests for assistance and searching for information in shared drives or document repositories. They may be reticent about contributing to a best practice and knowledge pool due to the effort required (in addition to everyday work activities) to identify and work-up information into a form suitable for submission. Ironically, however, reliance on familiar and trusted, yet inefficient tools and offline processes is the barrier preventing discovery of more effective avenues to help them control the flow of information, work more efficiently and free-up more time for networking activities.
Compliance
To date, it appears that bar associations and law societies have not issued formal rulings or guidance on the ethics of lawyer participation in, or the use of, social networks. Whether online social networking is an advertisement triggering related restrictions regarding advertising and solicitation of business depends on:
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The descriptive words used in profiles or other online resumes; and,
The rules of conduct applicable in the jurisdiction. To be prudent, lawyers should keep recommendations and testimonials off their online profiles or other sites they use for networking.5 In any case, if there is any doubt or concern about the use of certain content on sites, practitioners should refer to their rules of ethical conduct before proceeding.
When commenting on blogs or contributing to discussions in Q&A forums, it is important to ensure that such participation is not construed as the provision of advice to non-clients. Usually, all that is required is the same common sense approach and precautions applied in other networking settings (whether online or offline), like taking due care to answer in a correct manner.6
There are plenty of examples of lawyers responding to questions on networking sites and using caveats to clarify they are not offering legal advice or entering any lawyer-client relationship. For instance, David Murdico, creative director at Supercool Creative, posted the following question in a LinkedIn ‘Intellectual Property Group’:
“Where can we find the trademark cases referenced in a USPTO office action? We have had a trademark initially refused as being ‘Merely Descriptive’ and I’d like to know where I can find the cited cases, for example ‘see In re Steelbuilding.com, 415 F.3d 1293, 1297, 75 USPQ2d 1420, 1421 (Fed. Cir. 2005)’ to see what they are getting at. We also may be looking for someone to write a brief argument for and/or make changes to this application and a few others, if anyone is interested or can refer someone.”7
Here are extracts from two of the 12 responses to the question:
Answer one:
“I am not sure what mark you are trying to register and I haven’t seen the office action, but the questions you are asking suggest you are not in good shape… If you are tied to the mark, you can fight for it and, depending on how long you’ve been using it, you may need to let the mark sit on the secondary register until you can show it has acquired distinctiveness… A company like Supercool Creative should be able to develop a more creative, more easily registered, mark. I don’t know your company and I don’t know your mark, so I am not in any position to give you legal advice and please don’t take this as such. It is just something to think about.”
Answer two:
“It is difficult to fully respond to your question without knowing the trademark for which you applied and for which this Office Action issued. As others here have indicated, a merely descriptiveness refusal can be difficult to overcome, as the Trademark Office has recently become more aggressive with these refusals of registration. ... It is important that you have a qualified trademark attorney assist you with this ‘Response to Office Action’. I would be happy to speak with you or answer any questions you might have.”
If you set up a profile on a networking site, you should also periodically check that your profile remains accurate and does not, at some later stage, violate the rules of conduct in your jurisdiction. Irrespective of whether you have joined networking sites, you should search the internet to see what content there is about you. It is straightforward to set up a perpetual search through Google or Yahoo, which can alert you to new items as they appear. If anything problematic does turn up, you can take steps to have it deleted, amended or deal with it in a way that curbs any potentially negative publicity.8
Culture
Even though networking has always been important to the legal profession, many lawyers are not yet participating on networking sites. That is, in no small part, due to cultural and generational factors. It is not uncommon for lawyers to prefer telephone, e-mail or face-to-face communication, and be reluctant to try out new technologies or share information with their peers. Many are sceptical about possible benefits from online networking and are more inclined to tick off the risks than consider the opportunities. This perspective can be reinforced by the individual and siloed nature of traditional law firm culture. That culture is founded on client-focused practices, which obtain value from being able to organise and sell specialised knowledge.9 Since the primary source of lawyers’ income is derived from time spent on client work, they are not typically recognised for adopting a team-based approach to legal work or for sharing their expertise.10
The culture of perfectionism common in law firms can also lead to the creation of know-how databases as ends in themselves. Allen & Overy’s former global head of know how, David Jabbari explains that: “We delude ourselves if we think that incredibly finished databases and repositories of know how are the answer. The reality is that only a small percentage of that content is ever accessed by anyone. [Research by one law firm indicated] that even their most cherished pieces of know how – what they saw as ‘crown jewels’ – had usage figures of below 20 per cent. When you think how much the big firms spend on supporting that activity, you do wonder about the return on investment. Knowledge isn’t an inert thing that you put in a database. Its value lies much more in its currency and its exchange value, and this, of course, is a rapidly changing picture. I like social software because it gives you a chance to facilitate and capture this dynamic aspect of knowledge.”11
Starting small and addressing a few key business needs can create quick wins, which help to steadily overcome conservatism and resistance to change. While some projects may begin at the grass-roots level, senior and managing partner support will be essential to spread new ways of working throughout all firm levels. So an experimental approach that involves different perspectives will be vital in helping to shape ideas and encourage the spread of new styles of networked behaviour.
Demonstrating the business case
For the most part, core services within external social networking sites are free to use. Likewise, there are some economic lightweight options for implementing social tools in the firm, which can be rolled out by the users themselves behind the scenes. For instance, BT has used a combination of ‘open source’ software from the internet and licences for tools like Confluence (an enterprise-level wiki platform).12 Nevertheless, some platforms have higher licensing costs, leading to perceptions that social software is being sold at enterprise prices, and should be subject to the same conventional financial-based assessment to determine whether the project should proceed. Typically, organisations justify investments in technology on the basis that it will make staff more productive, thus improving the bottom line (for example, either making or saving more money). That rationale then has to be backed up with solid justification based on verifiable and measurable ‘return on investment’ (ROI) to receive funding. If expected returns are not clearly articulated, it can be difficult to secure budget to get the project off the ground.
Part of the problem with this approach in a social networking context is that intangible assets, such as knowledge, collaborative capabilities and social capital, seldom have a direct measurable impact on financial outcomes such as increased revenues, lowered costs and higher profits. The value of these tools emerges the more they are embedded within work practices, as people discover new ways of using them. In a business development context, the real pay-off from online social networking is often indirect, comprising intangible benefits such as learning and enhanced reputation. The idea that ‘returns’ can be catalogued upfront, or the value of networking and social tools can be measured in isolation and in traditional financial terms, is somewhat untenable.
Developing a business case for the use of social networking tools will continue to be a challenge until such time as lawyers view networking as an essential business process and the tools as being as necessary as a telephone or e-mail, or until concepts like ‘Social Capital Value Add’ are more widely adopted and understood.13 In the meantime, a well-rounded business case will need to illustrate a range of quantitative and qualitative gains to be made within a given set of specific work scenarios. Aaron Kim at IBM global business services, highlights a range of models and considerations to be taken into account when building the business case for social networking tools, including:14
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Efficiency gains or cost avoidance – early social media ROI models were based on how much time you save by relying on social media, converting that to monetary terms based on the cost of labour. For instance, how long does it take people to find a document in a shared set of folders versus access via a well-structured wiki? Can the use of a project wiki shorten project times? Can the use of RSS and blogs save people time that they would spend searching for information or compiling newsletters? This information should be supplemented by other sources of business value, which maps saved minutes with other measurable outcomes derived from having more time available. Otherwise, the most obvious way to realise the value of being more efficient is to reduce head count, as in theory, the group can do the same work as before with less people;
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Proxy metrics – these metrics consider what would be the corresponding cost of a conventional marketing campaign to achieve the same level of reach or awareness. For example, when calculating the ROI of a blog, the authors measure value by calculating the cost of advertising, PR, search engine optimisation and word-of-mouth equivalents. In-house, the value might be determined by the use of a blog to shorten the search for internal information or expertise; and,
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Knowledge capture – by having employees blogging, contributing to wikis, and commenting or rating content, firms are streamlining the knowledge management process. Know how is being shared as part of the work process. The number of templates or approved pieces of know how are perhaps less important than the conversations that took place in the blogs or in the comments on the wiki, and the metrics should reflect this accordingly.
To reiterate, these measures only give part of the picture. They do not indicate improvements to firms’ social capital and empowerment of the workforce, and the effect on firm’s structure, culture and innovative/collaborative capacity. There is certainly business value in having a workforce composed of well-connected, well-informed and motivated employees, but these results will appear over time, as the tools and their use within firms mature.
User engagement and sustainability
People are often resistant to change, especially when there is no clear and direct individual benefit from doing so. Similarly, people may be reluctant to change their behaviour because of their unfamiliarity with, or discomfort in, using technology. Established methods of working or developing business will inevitably prevail because of the ‘endowment effect’. That means we tend to value more what we presently have in our possession than what we might use as a substitute in the future, because we are genuinely risk and loss averse.15 The endowment role is clearly adopted by e-mail and face-to-face communications. Unless the new tools and networking process offer better and greater benefits to the individual than existing tools or processes, they will continue to use their existing methods for communicating, collaborating and networking, despite their drawbacks.
Another challenge to introducing people to social networking tools is the associated jargon. There are a lot of negative connotations in business regarding social networking and technology in general. Very few people recognise or would say that social networking is an activity they have been doing in their professional capacity. So much of this comes down to using the right language. What we call things and people’s perception of what things mean, can create very real barriers. Ian Rodwell, head of client know how services at Linklaters LLP explains it in these terms:
“Take, for instance, the ‘blog’ – it’s a simple publishing tool. We have been using the blog within Sharepoint as a way of replicating some of the newsletters that were being sent out. Initially, we ran a pilot within our knowledge community. Previously, the editor had the onerous task of collecting, editing and manually publishing the weekly newsletter. With the blog, anyone can go in, create a post and file it, making the editorial role superfluous. People can chose whether they want to receive news updates immediately or in a weekly digest, and they can comment on any item if they want. Immediately, this process overcame many of the administrative overheads of the traditional newsletter, and also gave people an easy way to discuss and feed back on the information that is being reported. Subsequently, we were explaining our experience to a lawyer in one of the practice groups, and in doing so, we used the word ‘blog’. As it turned out, the lawyer thought of a blog as an online diary. He queried who would want to use it and what good it would be in a practice group. But when we explained the whole process of how we used the tool for discussions and internal communications, which made everything so much more efficient in the process, the benefits rapidly shone through. That made us realise early on that we shouldn’t use the ‘B’ word – it just puts people off.”
Aside from engagement, the time and resources needed to sustain participation in online networks can also be a challenge. Networks require consistent and regular contributions to stay healthy. Committing to this means people need sufficient enthusiasm and ideas to keep the discussion going. It’s easy to lose your audience if your blog content is not refreshed or RSS feed goes quiet. To encourage a constant flow of information, and to engage people in the process, requires a shift away from centralised control of some communication and management processes. “The big challenge to firms is whether they are prepared to lose enough control to get their lawyers engaged in knowledge creation and sharing, without being naive about managing risk,” comments David Jabbari:16 “[If] you do lose control to a certain extent, you’ll actually empower the lawyers to have a greater sense of ownership of information that flows within a firm. And this could lead to enormous growth in the creation and sharing of valuable knowledge.” While that can lead to new challenges in dealing with increased volumes of information, it’s also a measure of a successful engagement processes.
Summary
As conservative technology adopters, many legal professionals have been slow to embrace social networking and social tools. Unlike previous generations of IT, the problem is not primarily cost-based. Instead, reluctance to engage with Web 2.0 stems from fears of security or privacy breaches, and perceptions of time wasting. These concerns are compounded by media coverage of internet horror stories and the dangers of using networking sites. People need to weigh these risks and challenges, however and learn to manage them as they have for other technologies such as e-mail, Blackberries and the internet in general.
Firm culture also plays a role here. In tightly-controlled siloed organisations, culture is an impediment to the use of open, participatory social tools. There is a broad wariness of a new IT approach that purports to solve so many problems and will overlap extensively with existing solutions, from e-mail and instant messaging, to content and document management and knowledge management systems.17 Initiatives within the firm can be used to catalyse change to routines, practices and mindsets, and highlight inefficiencies of technologies such as e-mail, as well as explore new methods of working. The value of social networking tools will emerge the more they are embedded within work practices, as people discover and get used to ways of using them.
This article is adapted from an excerpt of Ark Group’s Social Networking in the Legal Profession report, written by Penny Edwards and Lee Bryant. For more information contact Robyn Macè at rmace@ark-group.com
For a PDF of the Figure referenced in this text, please contact the editor at kclifton@ark-group.com
References
1. Tolk, B., ‘Internet marketing for attorneys – an ethics quagmire’, posted 25 November 2008 on http://www.bentleytolk.com/.
2. Braid, M., ‘Learn to love social network sites’, The Sunday Times, 27 January 2008.
3. University of Melbourne, ‘Freedom to surf: workers are more productive if allowed to use the internet for leisure’, posted 2 April 2009 at http://uninews.unimelb.edu.au/.
4. Anklam, P., The Social-Networking Toolkit - Building Organisational Performance through Collaborative Communities, Ark Group, London, 2005.
5. Cornelius, D., ‘Compliance and Recommendations on Social Networking Sites’, posted 24 March 2009 on http://www.compliancebuilding.com.
6. Holland, C., ‘The Dangers of Virtual Cocktail Parties’, 20 December 2007. See: http://www.law.com
7. See: http://www.linkedin.com/answers/law-legal/corporate-law/intellectual-property/LAW_COR_IPP/431601-1751804?browseCategory=LAW_COR_IPP
8. Cornelius, D., and Steele, J., ‘Marketing Technologies – Putting Your Best Face Forward’, ILTA, March 2008. See: www.iltanet.org.
9. Kabene, S.M., King, P., and Skaini, N., Knowledge Management in Law Firms, The University of Western Ontario, Canada.
10. Cornelius & Steele, ibid.
11. Clifton, K., ‘Profile: David Jabbari’, KM Legal, Vol. 1 Iss. 3, 2 February 2007.
12. Hill, A., Case Study: BT Enterprise 2.0, The Career Innovation Group, 2008.
13. Cayley, M., Introducing Social Capital Value Add: Manifesto for New Social Network Structural Management of Corporate Value, Munich Personal RePEcArchive, March 2008.
14. Kim, A., ‘ROI 2.0, Part 3: We don’t need a Social Media ROI model’, posted 19 February 2009 on: http://aaronkim.wordpress.com/.
15. Thaler, R., ‘Toward A Positive Theory of Consumer Choice’, Journal of Economic Behavior and Organization, 1980, reprinted in Breit and Hochman, Readings in Microeconomics, 3rd edition, 1985.
16. Clifton, ibid.
17. Hinchcliffe, D., ‘Determining the ROI of Enterprise 2.0’, posted 12 April 2009 on http://blogs.zdnet.com/Hinchcliffe/?p=334).
