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This program has been approved by the Board of Continuing Legal Education of the Supreme Court of New Jersey for 2 hours of total CLE credit. Of these, 1 qualify as hours of credit for Ethics/Professionalism, and 0 qualify as hours of credittoward certification in civil trial law, criminal trial law, workers compensation law and/or matrimonial law.

Marketing and Social Media trendS for

attorneySPrepared in connection with a Continuing Legal Education course presented

at New York County Lawyers’ Association, 14 Vesey Street, New York, NY presented on Thursday, April 25, 2013.

P r o g r A m F A C u L t Y :

Bruce K. Segall, President, Marketing Sense for Business LLCRon Idra, Esq., Promotion for Professionals

2 TRANSITIONAL & NON-TRANSITIONAL MCLE CREDITS: This course has been approved in accordance with the requirements of the New York State Continuing Legal Education Board for a maximum of 2 Transitional & Non-Transitional credit hours: 1 Ethics; 1 LPM

Information Regarding CLE Credits and Certification Marketing and Social Media Trends for Attorneys

April 25, 2013; 6:00 PM to 8:15 PM

The New York State CLE Board Regulations require all accredited CLE providers to provide documentation that CLE course attendees are, in fact, present during the course. Please review the following NYCLA rules for MCLE credit allocation and certificate distribution.

i. You must sign-in and note the time of arrival to receive your

course materials and receive MCLE credit. The time will be verified by the Program Assistant.

ii. You will receive your MCLE certificate as you exit the room at

the end of the course. The certificates will bear your name and will be arranged in alphabetical order on the tables directly outside the auditorium.

iii. If you arrive after the course has begun, you must sign-in and note the time of your arrival. The time will be verified by the Program Assistant. If it has been determined that you will still receive educational value by attending a portion of the program, you will receive a pro-rated CLE certificate.

iv. Please note: We can only certify MCLE credit for the actual time

you are in attendance. If you leave before the end of the course, you must sign-out and enter the time you are leaving. The time will be verified by the Program Assistant. Again, if it has been determined that you received educational value from attending a portion of the program, your CLE credits will be pro-rated and the certificate will be mailed to you within one week.

v. If you leave early and do not sign out, we will assume that you left at the midpoint of the course. If it has been determined that you received educational value from the portion of the program you attended, we will pro-rate the credits accordingly, unless you can provide verification of course completion. Your certificate will be mailed to you within one week.

Thank you for choosing NYCLA as your CLE provider!

New York County Lawyers’ Association

Continuing Legal Education Institute 14 Vesey Street, New York, N.Y. 10007 • (212) 267-6646

Marketing and Social Media Trends for Attorneys

Thursday, April 25, 2013; 6:00 PM to 8:15 PM

Faculty: Bruce K. Segall, President, Marketing Sense for Business LLC; Ron Idra, Esq., Promotion for Professionals

AGENDA

5:30 PM – 6:00 PM Registration 6:00 PM – 6:10 PM Introductions and Opening Remarks 6:10 PM – 8:15 PM Discussion

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MARKETING AND SOCIAL MEDIA TRENDS FOR ATTORNEYS

Ron Idra, Esq. Bruce K. Segall

April 25, 2013

AGENDA

1. Setting the Stage2. Social Media and On-line Marketing - Effects

on Professional Conduct in NYS3. Social Media Trends—Recent Case Law and

Implications for Legal Practice4. Social Media Trends – Use for Business

Development

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SETTING THE STAGE

Marketing and social media are garnering increased attention in the legal community Well-known that “legal marketing” field is

expanding

To further substantiate this, Marketing Sense conducted quantitative research among law firms with 10-80 lawyers

SETTING THE STAGE (CONT)

0% 10% 20% 30% 40% 50% 60% 70%

Greatly decrease

Decrease somewhat

No change

Increase somewhat

Greatly increase

How do you expect your marketing efforts to change over the next five years?

Planning for the future

• When asked specifically about social media, 30% are planning a great increase (vs. 24% for marketing overall)

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0% 10% 20% 30% 40% 50%

Other

Rely on attorneys

Rely on agencies

Part-time Marketer

One Marketer

> One Marketer

Which best describes how your firm staffs the marketing function today?

Staffing for Marketing

• Even among small firms, 20% have a full-time marketing person, and 10% even have more than a full-time marketing person.


When attorneys think of the growth of marketing and social media, compliance with Attorney Advertising rules often comes to mind first.

But this growth affects many other areas relevant to lawyers, including:

1. Copyright2. Defamation 3. Trademark4. Patent & Trade Secrets 5. Privacy

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TOPIC 2

ATTORNEY ADVERTISING: ONLINE / SOCIAL MEDIA PRACTICES

A BRIEF HISTORY OF ATTORNEY ADVERTISING

1908 1977 1983-5 1995 2005 2010

1800’s RelativeFreedom

Restrictive Period

ABA Model Rules and additional

rulings

Very restrictive rules overturned

in NY State

Bates vs. State of Arizona -

Immediate aftermath

Internet is born

Birth of social media

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ATTORNEY ADVERTISING HISTORY *

Relative de facto freedom with debate starting in 1850’s Even Abraham Lincoln’s office advertised

1908 – ABA first code – Canon of Ethics Followed ideology of George Sharswood ,

lawyers had high moral responsibility Only 3% of lawyers were ABA members, but

states followed suite quickly In practice, some advertising continued,

and rules loosened by 1970’s Especially patent attorneys

RelativeFreedom (1800’s)

Excellent source for history: Hornsby, William, “Clashes of Class and Cash: Battles from the 150 Years War To Govern Client Development,” Arizona State Law Journal, Summer 2005

Restrictive Period (1908-

1977)

ATTORNEY ADVERTISING HISTORY (CONT)

1970’s environment – Consumer groups and government attacks – nine similar actions pending

John Bates and Van O'Steen, recent law grads with a legal clinic, conclude that advertising is necessary

Arizona Supreme Court upheld ban on advertising, although reduced sanctions

Supreme Court ruled that right to free speech under First Amendment stronger than counterclaims, including “professionalism”- right to advertise prices for services- Court rejected Sherman anti-trust claims

States still had right to regulate advertising e.g. false and misleading advertising

Bates vs. State of Arizona

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Bates v. State Bar of Arizona, 433 U.S. 350 (1977),Opening of “floodgates”

vs. Narrow interpretation - many open questions

Predictable amount of brash advertising for personal legal services

But most, even for personal legal services, has been unremarkable

By 1978: ABA approves TV advertising, and DOJ drops antitrust lawsuit

Bates vs. State of Arizona –

Immediate aftermath


1983 - Model Rules of Professional Conduct replace the Model Code of Professional Responsibility

1985 – Supreme Court rules that lawyer dignity is not something that can be regulated – therefore ABA focuses on 10 Aspirational goals

1980’s - ABA Model Rules

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Internet is born 2002 Amendment to Model Rules

e.g. allow referral groups mail sent to those "known to be in

need of legal services in a particular matter" be labeled as "Advertising Material" on the outside of the envelope

1990’s - Early 2000’s

RECENT DEVELOPMENTS IN NY STATE

2005 2007 2010 2010

NYSBA Task Force on Attorney

Advertising Report

New York Rules of Professional

Conduct Amended


Conduct Amended

Alexander Vs. Cahill – Courts

Rule Mainly Against New Rules

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Diverse group of 17 members Identified key issues with current

advertising, including:1. False or misleading advertisements2. Addressing emerging media3. Jurisdictional and enforcement issues4. Waiting period prior to personal injury

advertising Made four recommendations

1. Changes to Code of Professional Responsibility

2. Adopt official advertising guidelines and policy of bar

3. Attorney Advertising Disclaimers4. Greater enforcement of Advertising rules

2005 NYSBA Task Force on Attorney Advertising Report


March 2 – Changes to Advertising Rules published

July 23rd - James Alexander; Alexander & Catalano challenged rules on First Amendment grounds Using slogan “The Heavy Hitters”

2007 Developments

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March 2010 US Court of Appeals ruling based on earlier District Court decision; Dealt with: Content-based advertising restrictions

Client testimonials on pending matters Portrayal of judges or fictitious law firms Attention-getting techniques unrelated to attorney

competence Trade names or nicknames/monikers that imply results

30-day moratorium in targeted communications to specific personal injury or wrongful death event

Court of Appeals - upheld lower court’s rejection of content based

advertising restrictions- With the exception of fictitious law firm names, provided

that such portrayal is actually misleading as to existence or membership of a firm

- Upheld lower court’s upholding of 30 day moratorium

Alexander Vs. Cahill – Courts

Rule Mainly Against New Rules


Distinction between “misleading” and “potentially misleading”

Useful Reference -Report of the Committee on Standards of Attorney Conduct and the Task Force on Lawyer Advertising on Changes to the New York Rules of Professional Conduct in Light of Alexander v. Cahill”

Disclosure requirements:


Conduct Amended 2010

“Every advertisement other than those appearing in a radio, television orbillboard advertisement, in a directory, newspaper, magazine or other periodical (and any web sites related thereto), or made in person pursuant to Rule 7.3(a)(1), shall be labeled “Attorney Advertising” on the first page, or on the home page in the case of a web site. If the communication is in the form of a self-mailing brochure or postcard, the words “Attorney Advertising” shall appear therein. In the case of electronic mail, the subject line shall contain the notation “ATTORNEY ADVERTISING.”

All advertisements shall include the name, principal law office address andtelephone number of the lawyer or law firm whose services are being offered.”

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Current StateToday, as throughout its history, attorney advertising is an enigmatic arena, characterized by values that act as opposing “pulls”

Even after the 2010 ruling, New York is generally regarded as more highly regulated than other states in its approach to

attorney advertising.

“Professionalism” Access & Freedom of Trade

Small Community Mass, urban societyPersonal legal services Corporate law

ATTORNEY ADVERTISING & ONLINE ACTIVITY

The growth of the Internet and social media in the last decade and a half has raised several important legal issues. Attorneys use and advertise online – and most have websites or web presences together with several social media pages.

New York State Rules of Professional Conduct Rule 7.1(f) states that: “Every advertisement other than those appearing in a radio, television or billboard advertisement, in a directory, newspaper, magazine or other periodical (and any web sites related thereto), or made in person pursuant to Rule 7.3(a)(1), shall be labeled “Attorney Advertising” on the first page, or on the home page in the case of a web site…In the case of electronic mail, the subject line shall contain the notation “ATTORNEY ADVERTISING.”

The Rules further state that “[a]ny advertisement contained in a computer-accessed communication shall be retained for a period of not less than one year. A copy of the contents of any web site covered by this Rule shall be preserved upon the initial publication of the web site, any major web site redesign, or a meaningful and extensive content change, but in no event less frequently than once every 90 days.”

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SOCIAL MEDIA FOR RESEARCH

As social media and blogging become more and more common and daily activities (more about this in Topic 3 of this CLE). It is also increasingly common for attorneys to perform a wide variety of research not just on websites, but through blogs and other Social Media pages.

Some common types of Social Media research performed by attorneys:

In-house counsel use of social media / blog to evaluate potential hires. A 2010 Corporate Counsel survey found that 27% of in-house counsel consider blogs on relevant topics as “most important” in the applicant selection process.

Attorneys also use social media in uncovering information during a litigation. Reviewing personal sites like Facebook, LinkedIn or YouTube may yield a wealth of significant, information about the opposing party, its witnesses, and counsel.

ATTORNEY ADVERTISING AND SOCIAL MEDIA

The rules on Attorney Advertising have produced many uncertainties for attorneys using social media. An attorney’s posting on social media or a blog may be personal conversation or may trigger a need for application of Rules of Professional Conduct. Much depends on the content of the posting, the motivation of the post (or series of postings), and the general context.

In New York State, an advertisement is defined as “a public or private communication made by, or on behalf of, a lawyer or law firm, about that lawyer or law firm's services, the primary purpose for which is the retention of the lawyer or law firm, except communications to current clients or other lawyers.” Rule 1.0(a).

According to New York State Rules of Professional Conduct Rule 7.1(a)(1), a lawyer or law firm may not use or disseminate any advertisement that “contains statements or claims that are false, deceptive or misleading.”

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THREE DIFFICULTIES WITH SOCIAL MEDIA

Difficulty No. 1: How do you distinguish between a personal communicationand an attorney advertisement in a social media post?

Difficulty No. 2: Assuming a given social media post is considered an advertisement, how does the attorney ensure that these ads comply with relevant Attorney Advertisement rules?

Difficulty No. 3: Social media allows for interactivity – so even if an attorney’s posts comport with Attorney Advertising rules and standards, users may reply to the post and continue the communication or dialogue, adding additional content which may be false and/or misleading.

DOES AN ONLINE ACTIVITY PROMOTE A LAW PRACTICE?

First Difficulty: Distinguishing between an attorney’s personal communications and advertisements is one issue in attorney use of Social Media. While

Accepted View: If online activities promote a law practice, then it is attorney advertising.-- Supported by a long series of ethics opinions from the ABA and in other states, including ABA Formal Opinion 10-457 (2010) and Arizona Ethics Opinion 97-04 (1997)

If an attorney announces his or her legal victory on Twitter or Facebook, it’s clearly an advertisement.

If an attorney blogs about a case but never mentions that he/she is an attorney, it would probably NOT be considered an advertisement.

Informal Rule of Thumb: If I’m doing this to get hired by a client, it’s an advertisement!

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SOCIAL MEDIA COMPLIANCE WITH ATTORNEY RULES

Difficulty No. 2: Assuming a given social media post is considered an advertisement, it can be challenging to ensure compliance with Attorney Advertisement Rules.

“Attorney Advertising” statements -- How would a Social Media post such as a Tweet or Facebook post comply with the requirement that the advertisement be labeled “Attorney Advertisement”? Issue of practicality as Social Media posts may be may only be a few lines long – and are continuously updated. Would placing “Attorney Advertising” on a Facebook or Twitter profile page be conspicuous or sufficient for these purposes? What about the attorney’s replies or responses to other Social Media postings?

Context often hard to provide – the very fast-paced – and often “summarized” – nature of Social Media postings may also paint a certain picture of the attorney or law firm which could be potentially misleading, since only certain information is included. It’s noted directly in the New York Rules of Professional Conduct that even factually true statements may be misleading if not provided with the additional information necessary to explain the full context.

Example: Tweeting a string of court victories may not give an accurate picture of a law firm which has also had its share of losses.

INTERACTIVE NATURE OF SOCIAL MEDIA

Difficulty No. 3: Social media allows for interactivity – so even if your own post comports with Attorney Advertising standards, users may reply to the post and continue the communication or dialogue, adding additional information and content which may not be factually accurate, or which may be misleading to other users.

For example, LinkedIn (as well as other social media sites) allow users to “recommend” others and post content about their work. Some state Bars have noted that such recommendations should be vetted by the attorney to ensure the totality of the communications comport with Ethics rules.

For example, according to the South Carolina Bar, such recommendations must not “create unjustified expectations or otherwise mislead a prospective client.” (Ethics Advisory Opinion 09-10 (2009))

Attorneys should be therefore carefully review the recommendations and endorsements they receive on their Social Media sites so that any other reader or visitor to the site will get an accurate picture of the attorney and/or law firm’s capabilities and areas of practice. Key is not to mislead potential clients!

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CONCLUSION: ATTORNEY ADVERTISING KEY TIPS

New York Rules of Professional Conduct pp. 163 – 167 is an excellent summary

Labeling any marketing-related email as “Attorney Advertising” in the subject line may seem onerous. However, many exceptions exist:

Current clients (interpreted “more broadly” than “for purposes of conflict of interest analysis”)

Former clients

Certain newsletters and client alerts

The “primary purpose is general awareness and branding, rather than the retention of the law firm for a particular matter”

Participation in an educational program

Solicitation as a subset of advertising

No solicitation “by in-person or telephone contact or by real-time or interactive computer-accesses communication” e.g. pop-up ad “unless the recipient is a close friend, relative, former client or client.”

Filing of solicitation as directed on pp. 175-6 of New York Rules

Use of domain names that do not include name of lawyer or law firm are permitted under certain circumstances (p.183)

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TOPIC 3:

LEGAL IMPACT OF SOCIAL MEDIAIP, MEDIA, AND COMPANY POLICIES

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SCOPE OF OUR DISCUSSION ON THIS TOPIC

What we’ll be covering: Overview of intellectual property basics and how the law relates to

and has been affected by social media Mostly Federal case law – several relevant court decisions in IP Two relevant statutes: so-called “Safe Harbors” U.S. Law only!

What we won’t be covering: State by state statutes or international law; litigation or evidentiary issues; Federal or state agency regulations.

Additional information, case citations, and references are provided in your materials for all topics for a closer, more detailed examination.

BRIEF INTRODUCTION TO SOCIAL MEDIA

In the early 2000’s, social media came on the scene and has grown exponentially in use and popularity. It is, in fact, the fastest growing media ever. Social media can be viewed as the biggest development since the rise of the internet itself – the very essence of Web 2.0.

We’re living in an unprecedented digital information economy and at the moment the web, social media, and mobile apps are at the center of it!

We focus on social media and just a few of its myriad legal implications. The interactive, fast-moving, and viral nature of social media carries with it both unprecedented opportunity and risk.

On the one hand, the way social media content is published and shared opens up tremendous opportunity and exposure for a company, organization, political or social cause, or brand. On the other hand, being unaware of potential legal risks – specifically in intellectual property, media, and privacy – can be a source of potential problems down the line.

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SOCIAL MEDIA: ITS LEGAL IMPACT – OUTLINE:

Part I – What is Social Media and Why is it Important?

Part II – What are Some of the Legal Ramifications of Social Media – in Intellectual Property, Privacy, and Related Law?

Part III – What are Common Company Concerns Relating to Social Media?

SOCIAL MEDIA: A DEFINITION

Social media can be defined as the “online interaction of individuals and the exchange of user-generated content and information.”

Social media can take on many different forms, including Internet forums, blogs, micro-blogging sites, wikis, podcasts, photo or video sharing sites and even social bookmarking.

“Social media are media intended for social interaction, using highly accessible and scalable communication techniques. Social media is the use of web-based and mobile technologies to turn communication into interactive dialogue.”

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EARLY DEVELOPMENT OF SOCIAL MEDIA

The Internet and the World Wide Web started to gain popularity during 1996 to 1998, when the dot.com boom started in earnest.

-- in 1994, the number of websites was approximately 2,700 and by year’s end, it was still only around 10,000.

Social Media can be seen as arising from what is known as Web 2.0. Initially the internet and world wide web developed as static web pages, which were viewable, but could not be “responded to” or “interacted with” by the web visitors.

Gradually, interactivity was added to the mix. Online forums and blogs were early forms of social media

Similarity to the concept of peer-to-peer sharing (file sharing) which arose in a different context (e.g., Napster, Grokster, etc.) but was an early example of user-to-user communication.

TYPES OF SOCIAL MEDIA

One way to classify social media is according to the following types:

1. Social Networking – Facebook, Twitter, LinkedIn, Pinterest2. Microblogging – Tumblr, Twitter3. Social Bookmarking – StumbleUpon, Reddit4. Multimedia Sites – such as YouTube, Vimeo, and Flickr

Well-Known Social Media Sites: Facebook – the premier social networking site, posting of all types of content MySpace – one of the first successful social sites; still has about 25 million members Twitter – microblogging site allowing for short 140 character messages LinkedIn – social media site for professionals; networking / career building Pinterest – fast-growing site with bulletin boards of favorite images & photos YouTube – very popular site for sharing of video clips, music videos, and even films Google Plus – Google’s answer to Facebook: so far hasn’t caught on in popularity

Other Notable Social Media Sites: Instagram – new social media site (and mobile app); sharing of uploaded photos as well as

image manipulation; recently bought by Facebook Foursquare – a location-based social media site, allowing people to “check in” at various

places and find friends Vimeo – video sharing site similar to YouTube; more “artistic” in nature

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SOME INTERESTING SOCIAL MEDIA STATS…

Social media is the fastest growing communication medium ever! Some stats on popular social media sites include:

Facebook – as of Jan. 1, 2013, Facebook has over 1.06 billion active monthly users; over 57% growth in monthly mobile usersFacebook also noted that last year it logged 1.13 trillion "likes," had 219 billion photos uploaded, and have 604 million mobile users.

Interesting statistic / trend: more people use Facebook now on their mobile devices than their desktops

Twitter – Justin Bieber and Lady Gaga have the most Twitter followers, each with approximately 33.3 million.

LinkedIn – 200 million LinkedIn members as of January, 2013.

YouTube – as of early 2013, the music video “Gangnam Style” was viewed over 1.5 billion times!

INTERESTING SOCIAL MEDIA STATS (cont’d)…

Some of the larger social media sites are also rivaling the major web search engines in importance:

YouTube, a social media site where video is uploaded and shared has become its own phenomenon -- the 2nd most popular search engine after Google is YouTube – ahead of even Bing and Yahoo.

YouTube has also heralded the rapidly growing practice of watching video, TV and film online through sites such as Netflix, Hulu, as well as on YouTube; many people watch TV online or offline and surf the web or engage in social media at the same time, subtly changing our viewing habits, the way we interact with our entertainment, as well as advertising practices.

Time Spent Statistics (per month): between 2006 and 2011: Social Networking – 2.7 hours to 6.9 hours Phone/Email/Mail – 5.7 hours to 4.8 hours Socializing in Person – 22.8 hours to 21 hours Watching TV Offline – 71.1 hours to 59.4 hours Watching TV Online – 6.3 hours to 23.1 hours

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SOCIAL MEDIA: A UNIQUE LEGAL CHALLENGE

Social Media has several characteristics that create unique and interesting legal challenges:

Social media – and all digital media for that matter – allow for almost instantaneous, low-cost copying and content dissemination; leads to the possibility of a “viral effect” for both good content and bad.

Social media has a built-in interactive component – users post content to other users’ posts and engage in extended dialogue and online “conversation”;

Social media is continuous and “ever-present”: an individual or company or business’ brand may be on social media even if they themselves are not.

TWO ONLINE / SOCIAL MEDIA “EFFECTS”

Before we delve into the legal implications and risks of this important new medium – we examine two Internet and social media effects: the “Viral Effect” and the so-called “Streisand Effect”:

The “Viral Effect” – the spiraling nature of social media sharing and viewing; in 24 hours, a video shared on YouTube, an article or post shared on Facebook or tweeted through Twitter can be viewed thousands, or tens of thousands of times.

The “Streisand Effect” – the phenomenon where the attempt to hide or remove content has the opposite effect of publicizing that content even more widely (based on an actual case!).

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THE “STREISAND” EFFECT

In 2003, celebrity entertainer Barbara Streisand unsuccessfully sued photographer Kenneth Adelman and Pictopia.com for violation of privacy.

The $ 50 million lawsuit claimed an aerial photograph of Streisand's mansion from a publicly available archive of 12,000 California coastline photographswas a violation of privacy and should be removed.

Before Streisand’s lawsuit, "Image 3850" had been downloaded from its site only 6 times (and two of those downloads were by Streisand's counsel!).

As a result of the lawsuit and the publicity it generated, the following month, more than 400,000 people visited the site and saw the image in question!

Takeaway: In a social media context, it’s especially important to be cognizant of the effect the pursuit or threat of legal action will have on the popularity of the damaging, offensive or infringing content.

SOCIAL MEDIA LEGAL DEVELOPMENT

Much of the development of case law and statutes around digital communication and social media has been motivated by the desire to see this new medium flourish and grow; social media is generally recognized as valuable to the flow of ideas, public communication and free expression.

Service providers, hosting companies, and computer hosts, etc. are shielded from liability through “Safe Harbors”

“Substantial Noninfringing Use” Doctrine in Copyright law – Sony vs. Universal (“Betamax case”)

Attempt to use Copyright “Fair Use” principles whenever possible

Differentiation between linking / embedding on the one hand, and copying, on the other, for purposes of Copyright infringement.

We will be examining some of these cases and doctrines in the pages that follow…

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PART II:

WHAT ARE SOME OF THE LEGAL RIGHTS AND ISSUES IN THE USE OF SOCIAL MEDIA – IN INTELLECTUAL PROPERTY, PRIVACY AND

RELATED LAW?

SOCIAL MEDIA: POTENTIAL LEGAL ISSUES / RISKS

What are some of the potential legal issues and risks that can arise with social media? What can your clients possibly be sued for? Just some examples:

1. Invasion of Privacy – publication of private facts or improper protection of PII (“Personally Identifiable Information”); employees expectation of privacy vis-à-vis their jobs and employers.2. Copyright Infringement – copying and posting copyrighted content in a social media context.3. Defamation -- libeling someone through social media; causing harm to reputation.4. False Advertising – false or misleading statements sent out on a company’s behalf; failure to disclose a connection with a celebrity endorser of a business on social media.5. First Amendment -- offensive content posted on company blogs.6. Interference with Business Relations – state causes of actions; tortious interference with a competitor; other forms of unfair competition.7. Trademark -- confusing consumers about an association with a brand.8. Trade Secret – disclosure of protected business trade secret through social media.

This is a mix of federal and state causes of action; diverse set of potential causes of action

RULE: Generally, laws, regulations, and rights which apply to products, advertisements, and communications in other media apply to social media as well.

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OUR LEGAL AREAS OF FOCUS

For our discussion, however, we’ll focus on a few key areas – intellectual property, privacy, and personal rights. Let’s examine the unique challenges posed by social media in the following areas:

1. COPYRIGHT2. DEFAMATION 3. TRADEMARK4. PATENT & TRADE SECRETS5. PRIVACY

Generally we’ll be examining case law in these areas, but let’s summarize two Federal statutes that have had a great influence in opening up communication and growth in online and social media – the so-called “Safe Harbors”: Section 230 of the Communications Decency Act (CDA) and Section 512(c) of the Digital Millennium Copyright Act (DMCA)

THE “SAFE HARBORS” – CDA & DMCA

Two relevant statutes (and sections) to our examination – the so called “Safe Harbors”

Communications Decency Act (“CDA”) – Section 230 -- the Section states that no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

Digital Millennium Copyright Act (“DMCA”) – Section 512(c) -- the “Safe Harbor” provision allows online service providers protection from copyright infringement if it implements a “repeat infringer” policy and “standard technical measures” to “identify and protect copyrighted works” and acts to remove infringing material once it has obtained notice of such.

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COMMUNICATIONS DECENCY ACT - SECTION 230

Went into effect 1996, the Communications Decency Act: 230(c)(1) – (“CDA”) states that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

Although CDA was held to be unconstitutional in 1997, section 230 survived.

Social media sites are counted as providers of an “interactive computer service”; users are “information content providers”

Encourages the creation of media and forum for online interaction and provides protection against liability for defamation, breach of contract, emotional distress, negligent misrepresentation, and similar causes of action.

The CDA provides cover for those who republish; provides very strong protections for retweeting, blogging, or sharing on Facebook

Important Note: Section 230 does NOT protect against Federal criminal or Intellectual Property claims.

DIGITAL MILLENNIUM COPYRIGHT ACT (“DMCA”) - SEC. 512(C)

The Digital Millennium Copyright Act (“DMCA”)— went into effect in 2000; consisted of a number of provisions including the "anti-circumvention" provisions (which protect against circumventing technical protection measures) and the “Safe Harbor” provisions of Section 512.

Section 512 “Safe Harbor" Provisions -- protect service providers (who meet certain requirements) from liability for the infringing actions of users and third parties on a site or within a network .

-- service providers must comply with Section 512 requirements including “notice and takedown” procedures after notification of potential copyright infringement from the copyright holder.

In order to qualify for safe harbor protection, a service provider who hosts contentmust: have no specific knowledge of -- or gain a financial benefit from – copyright

infringing activity on its network; have a copyright policy and provide notice of that policy to its users; and designate an agent to handle with copyright complaints and issues.

Overall, the DMCA protects such intermediaries from liability and encourages free expression online.

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1. COPYRIGHT

Legal Rights & Issues in Social Media:

The U.S. Copyright Act grants certain exclusive rights to the owner of a copyright in a work. These exclusive rights are different from the rights given to a person who merely owns a copy of the work.

The Copyright Act grants five rights to a copyright owner: the right to reproduce the copyrighted work; the right to prepare derivative works based upon the work; the right to distribute copies of the work to the public; the right to perform the copyrighted work publicly; and the right to display the copyrighted work publicly.

Additional Copyright Principles / Doctrines: 1976 Copyright Act extended copyright to life of the author plus 70 years (for works after

1978) Copyright inheres automatically; don’t need to register a work with the U.S. Copyright

Office, but do need registration to bring a lawsuit Ideas are not copyrightable; only a specific expression of that idea (for To be copyrightable, a work must be “original” and possess minimum degree of

“creativity” Work for Hire Doctrine – employer owns work it commissions and pays for Fair Use Doctrine – some uses of copyrighted work permitted (see next page)

COPYRIGHT – PROTECTING USER CONTENT ONLINE

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COPYRIGHT “FAIR USE” DOCTRINE

The Copyright Fair Use Doctrine limits the reach of copyright in certain circumstances, based on the policy that Copyrights should not be overprotected.

States that “fair use...for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”

A given use of a copyrighted work is judged to be “fair use” based on the following guidelines:

Purpose and character of the use – transformative use more protected than mere copying

Nature of the copyrighted work – unpublished more protected Amount and substantiality of the portion used – copying substantial

portion of a work less likely to be found “fair use” Effect on the market or potential market – most important factor: did

the copying and use affect the original copyright holder’s revenue?

COPYRIGHT AND SOCIAL MEDIA

Generally, the original author owns the copyright to their posts on Social Media; because content is on a social media site, that does not mean there is an implied license to use (but note some content is under a “Creative Commons Attribution License” – requires only attribution of the original owner).

If someone is hired to promote a product to users of a social media site, the Work For Hire Doctrine will apply – may need to have a contract.

Note: some individual social media posts many not meet the minimum degree of creativity to merit Copyright protection.

Note also: Deep Linking (hyperlinking to another’s website, bypassing the homepage) generally permitted - Ticketmaster Corp., et al. v. Tickets Com, Inc. (2000).

Contributory Infringement may also be important in a social media context --defined as a form of copyright liability on the part of a company, individual or organization who is not infringing directly, but is making material or significant contributions to the infringing acts of others.

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2. DEFAMATION


WHAT IS DEFAMATION?

Defamation of Character is the communication of false information stated as a fact which brings harm to an individual or an entity, such as a business, organization, or governmental body. For the content or information to be considered defamatory, the statement must be delivered

in speech or in writing to at least one person other than the victim. Two types: libel and slander. Traditional definition was that slander is “spoken” whereas

“libel” is written; however, defamatory media content – whether radio or television – to fall under “libel.”

Seminal case in this area is: New York Times vs. Sullivan (1964) – states that U.S. law gives wide latitude for protected speech; four requirements for libel: Statement was false Statement was disseminated Statement caused injury Fault amounting to at least negligence

Additional aspects of defamation: Must be a statement of fact; Opinions are more protected, but opinions stated as

facts are not Public figures are harder to libel than private individuals (public figures are open to

more criticism) Parody is completely protected -- Hustler Magazine vs. Falwell (1988)

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EXAMPLES OF DEFAMATION

Specific examples – a few results of past cases gathered by the Electronic Frontier Foundation (EFF.org) demonstrates the factual nature of concluding there is defamation as well as the need to ascertain context.

Ruled as Libelous: A charge that an individual is a “communist” (in 1959) Calling an attorney a "crook" Describing a woman as a “call girl” Accusing a minister of “unethical conduct”

Ruled as NOT Libelous: Calling a political foe a "thief" and "liar" – ruled as hyperbole in this case

since the context was a chance encounter; Calling a TV show participant a "local loser," "chicken butt"

and "big skank“; Calling someone a "bitch" or a "son of a bitch“

RECENT SOCIAL MEDIA DEFAMATION CASES - 1

People are suing for defamation on Twitter and other social media -- three recent examples of defamation lawsuits show the need to exercise caution when tweeting or posting any potentially negative comments about other parties:

(1) Horizon Realty (2009)

Realty company sued tenant Bonnen for defamation after he tweeted comments suggesting that Horizon Realty thinks sleeping in a moldy apartment is OK.

Horizon Realty cited Bonnen’s other negative tweets about McDonald’s and Spirit Air

Result: Dismissed with prejudice: tweets were too vague

Demonstrates “Streisand Effect” – before the suit, Bonnen had 20 Twitter followers; after the suit, journalists picked it up, and the suit became the 3rd

most popular trending topic!

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(2) Courtney Love (2009)

Designer Dawn Simorangkir sued celebrity Courtney Love, based on statements Love made on her Twitter and MySpace accounts – including accusations that the designer had a criminal background and had engaged in theft

Plaintiff had to only prove negligence, not that Defendant knowingly knew them to be false.

Result: Settlement – suit dropped; Courtney Love will pay Defendant $ 430K.


(3) Spooner Lawsuit (2011)

NBA Referee Bill Spooner filed a lawsuit against AP News and AP reporter Jon Krawezynski for a tweet about the referee’s calls; the lawsuit stated that the tweet “implied the Plaintiff was engaged in fixing the game”

Claim that Spooner was subject to disciplinary action as a result of the tweet;

Result: Settlement – suit dropped for payment of $ 20K to cover Spooner’s legal fees.

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3. TRADEMARK


WHAT IS A TRADEMARK?

Trademarks are words and logos that identify the business sources of goods and services. They’re the bedrock of an economy and the business culture of the modern age.

A company’s brand (represented in its trademark) is the accumulation of all the good will that’s been built up over the years through the public’s experiences with the product or service (it often represents a tremendous capital investment).

As consumers, we use brand names to distinguish among the myriad products we purchase and use. As producers, we try to find unique niches for our goods and services. As members of the public, we incorporate trademarks in our culture and speech on all levels.

Trademarks are extremely important to the functioning and stability of business, the economy, as well as our lifestyle.

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IMPORTANT TRADEMARK FACTS

Additional important principles to remember about trademarks:

Trademarks (or service marks) are used and are protected for a particular class of goods or services; “trade names “are similar to trademarks in that they designate the names of businesses; “trade dress” protects distinctive packaging.

Trademarks are protected under state common law as well as Federally (through the U.S. Patent & Trademark Office); must go through a Federal application process to receive Federal registration status and an (R) designation.

Different types of trademarks are afforded different degrees of protection if challenged in court: arbitrary or fanciful named trademarks are strong whereas suggestive or descriptive marks are weaker.

A trademark must be protected through proper usage – must be used consistently.

Trademarks are based on use – as long as they are in use and maintained, they can last indefinitely.

ONLINE TRADEMARK INFRINGEMENT

Trademark infringement is defined as the “the use of a mark that is identical or confusingly similar to a mark owned by another party.” Standard is “likelihood of confusion” of consumers.

Though trademarks have been around long before the internet, the use of trademarks online and in digital media can create unique challenges.

For example, the internet’s global scope erases geographical boundaries that once allowed multiple users of the same mark to co-exist.

Trademarks may be infringed online through any number of means, including: Domain names which are similar to well-known trademarks have been

registered by individuals who then try to sell these domains to the trademark owners (a practice known as “cybersquatting”).

Some companies used trademarks of competitors on their own site (either directly on their site or in meta tags) to divert traffic of users looking for those products to their site.

Trademarks belonging to another party can also be copied and used on a website, social media post, or blog to imply an authorized connection to the trademarked product.

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SOCIAL MEDIA AND TRADEMARK INFRINGEMENT

Social media postings and content may create consumer confusion with respect to a Trademark just like in any other media; may lead viewers or users to mistakenly believe that you have an association or affiliation with someone else’s Trademark.

Social media sites such as Facebook, YouTube, Twitter, etc. have their own Trademark Infringement policies.

For example, Twitter’s Trademark Infringement policy states:

“Using a company or business name, logo, or other trademark-protected materials in a manner that may mislead or confuse others or be used for financial gain may be considered a trademark policy violation. Accounts with clear intent to mislead others will be suspended; even if there is not an explicit trademark policy violation, attempts to mislead others may result in suspension.”

Takeaway: Even if there is no explicit trademark violation, an attempt to mislead users / consumers may be considered a reason to suspend a social media account.

TRADEMARK PARODY

Similarly to the Copyright “Fair Use” Doctrine, parody may in some circumstances be a defense to trademark infringement.

No likelihood of confusion because consumers will not take the parody seriously. For the defense to work, the parody must be clever enough so that it is clear to the reasonable consumer that it is not the original, or connected to the Trademark owner, but is merely a humorous take-off.

In the social media context, Twitter has a separate policy addressing parody:“Twitter users are allowed to create parody, commentary, or fan accounts. Twitter provides a platform for its users to share and receive a wide range of ideas and content, and we greatly value and respect our users' expression. Because of these principles, we do not actively monitor users' content and will not edit or remove user content, except in cases of violations of our Terms of Service.”

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DMCA NOT APPLICABLE TO TRADEMARK

The Digital Millennium Copyright Act (DMCA) and the safe harbors it creates apply to copyright, not trademark infringement.

The DMCA safe harbor provisions protect the online service provider from liability for copyright infringement for user-generated content.

Recent Case: A case (September, 2012) involving CafePress (the “service provider”) demonstrated that the DMCA does not apply to claims of trademark infringement in the same way it applies to copyright.

A federal court in a N.Y. district denied CafePress’ motion for summary judgment seeking to dismiss claims of trademark infringement– implying the principle that you can sue online service providers for trademark infringement based on user-generated content.

4. PATENT & TRADE SECRETS


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PATENTS AND TRADE SECRETS

We now examine the possibility of willful or inadvertent disclosure of information pertaining to a patent or trade secret via social media…

Patents and Trade Secrets are two entirely separate rights:

-- Patents are defined and protected through Federal Statute and involve a complex application and set of procedures; -- Trade Secrets, on the other hand, are defined mostly through state common lawand require confidentiality to keep them in force.

However, both rights involve “disclosure” – or lack thereof -- as one of their core principles: a Patent is granted in exchange for disclosure of an invention while a Trade Secret is recognized only when its subject is NOT disclosed.

WHAT IS A PATENT?

Patents protect useful inventions for a limited period of time through an enforceable monopoly.

A patent is an intellectual property right granted by the U.S. Code – Title 35 – and the Patent & Trademark Office -- to an inventor or his assignees “to exclude others from making, using, offering for sale, or selling the invention throughout the United States or importing the invention into the United States” for a limited time (typically 20 years) in exchange for public disclosure of the invention when the patent is granted.

There are three types of patents: Utility (the typical “patent”), Design, and Plant Patents

Three basic requirements for an invention to be patentable: 1. New – invention must be new with respect to other inventions in the field

(the “Prior Art”) 2. Useful – the invention must accomplish a useful result 3. Nonobvious – the invention must be a sufficient “inventive leap”

over the prior art

Recent changes to the U.S. Patent Act -- will be going into effect September, 2013 –changes the awarding of a patent from the “First to Invent” to the “First to File” in the Patent Office.

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THE PATENT STATUTORY BAR

The Statutory Bar – Section 102(b) states that a person shall be entitled to a patent unless:“the invention was patented or described in a printed publication in this or a foreign country, more than one year prior to the date of the application for patent in the United States.”

In other words, once an invention is disclosed, published, or revealed to the public, you have one (1) year in which to file an application seeking to patent it.

Main reasons for the patent statutory bar: 1) A patent is a monopoly in exchange for disclosure – the statutory bar ensures

prompt disclosure 2) Allows the public to rely on inventions that entered the public domain without

incurring the risk that the inventor will seek to patent it a later time 3) Statutory bars prevent an inventor from delaying filing of a patent to de facto

extend the patent term 4) Allows the inventor to check the commercial viability of an invention before

filing for a patent

IMPORTANCE OF PATENT PUBLIC DISCLOSURE

Public disclosure: “an electronic publication, including an online database or Internet publication, is a ‘printed publication’…” But Note: such publication must be sufficiently “enabling” and must be accessible to those in the relevant art to be considered under this law.

Examples of possible public disclosure of an invention via Social Media: A shared picture of the invention A blog or Facebook page post

Potential loss of patent rights to the invention if invention is disclosed.

Additional reason why disclosure issues are even more important in today’s business and legal environment:

In 1998, in State Street Bank & Trust Co. v. Signature Financial Group, the Federal Circuit expanded the scope of patentable subject matter, holding that “business methods” may be protected under patent law. Previously, patents were only granted for a “useful process, manufacture, composition of matter or machine.”

Since State Street, business method references, descriptions, and information may be easily disclosed online without realizing that one has triggered the one year statutory bar!

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WHAT IS A TRADE SECRET?

Trade secrets are defined and protected by state law, and the precise language varies by jurisdiction…

Generally, trade secrets are formulas, business practices, designs, compilation of information, which are economically advantageous to its owner and are confidential.

Trade secrets can last indefinitely, as long as they’re kept confidential.

Most jurisdictions agree that a trade secret shares three common features: It is something that is not generally known to the public; It provides its owner with an economic benefit of some type; note that the

benefit must result from its not being known to others – not just from the information itself;

It is kept confidential through reasonable business efforts of its owner such as NDA’s (Nondisclosure Agreements)

Famous Trade Secret Example: Secret formula for Coca Cola.

Thus, Trade secrets are protected through non-disclosure!

TRADE SECRET ADVANTAGES & MISAPPROPRIATION

Benefits of a Trade Secret (compared to patent protection): Trade secrets are unlimited in duration – continue indefinitely as long as the

confidential information, process, or compilation is not revealed to the public (compared to patents, which last only 20 years).

A trade secret does not require registration costs or compliance with any special legal procedures, whereas a patent is often very costly to apply for and maintain.

Trade secret protection is immediate – whereas the typical patent application process alone can last a year to several years.

Maintaining a trade secret does not require public disclosure as does a patent, which may be more advantageous to a business.

Elements of Trade Secret Misappropriation: 1. Existence of a valid trade secret; 2. The trade secret is disclosed or used without consent from its owner; 3. The disclosing party knew, or should have known, that the trade secret was

learned or acquired improperly; 4. The trade secret owner experiences financial harm.

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TRADE SECRET MISAPPROPRIATION VIA SOCIAL MEDIA

Some examples of potential trade secret misappropriation: shared or posted picture of the trade secret design or other subject matter a blog or Facebook post of compiled information or a methodology a video of a process posted to YouTube

For example, if an employee of Coca Cola tweeted out: “we just ordered the following ingredients….”

What if a person re-posts or re-tweets shared content which may constitute a misappropriation? Answer likely depends on the 3rd element of the trade secret misappropriation claim:

Did the defendant know – or should he/she have known – that the trade secret was acquired by improper means?

5. PRIVACY


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WHAT IS THE RIGHT OF PRIVACY?

First, the issue of privacy, which has become one of the most talked about issues in the press, not just for social media, but for the web in general, and more recently for mobile apps.

Privacy Law refers to a wide set of laws – mostly state-defined common law -- which regulate a person’s right to their own person, image, and information.

Invasion of the right of privacy includes any of the following direct actions: appropriating an individual’s identity for another party’s benefit; placing an individual in a false light in the public eye; publicly disclosing private facts about an individual; or unreasonably intruding upon the seclusion or solitude of an individual.

An alternative way of stating this is he right of privacy is invaded by: (1) appropriation of the other’s name or likeness and/or (2) unreasonable publicity given to the other’s private life….;

The right of privacy is often paired with or compared to the closely related Right of Publicity which allows an individual to control the commercial use of his/her name, likeness, or identity; unlike privacy, publicity is a property (not a personal) right, allowing it to survive the death of the individual; publicity is also a state-based right.

PRIVACY RULE – AND OTHER RIGHTS

Separate from Right of Publicity -- the right of privacy is a personal tort and may not be assigned or inherited (unlike the right of publicity, which is a property right, and may generally be assigned and inherited).

Separate from Copyright – privacy and publicity rights are separate and distinct rights from copyright; a determination as to whether a given media is copyrighted is separate and distinct from a determination as to whether there are rights of privacy and/or publicity of the subjects depicted in that media.

RULE: Under common law, whether an individual’s constitutional right to privacy has been violated depends first on a determination whether that individual had a personal and objectively reasonable expectation of privacy which was infringed.

There remains no established method for determining when an expectation of privacy is reasonable.

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PRIVACY ON SOCIAL MEDIA

RULE: A public posting on a public site is public, but a posting may be private if posted in a password-protected site.

Issue of Employers checking up on employees through social media:

RULE: Employers CAN check LinkedIn to verify information supplied by an applicant or employee

re: work history. Employers CAN check more personal social media sites such as Twitter, Facebook,

MySpace, and so forth for content which may be harassing to other employees, or to verify the whereabouts of an employee who is out.

Maryland is the first state (as of October, 2012) to expressly prohibit the practice of allowing employers to demand the disclosure of login information to employees’ or job applicants’ social media sites. More states may soon follow, including California, Illinois, Massachusetts, Michigan, New Jersey, and Washington.

Also note that employers cannot use the information found on social media as a basis to discriminate against employees or candidates due to race, religion, sexual orientation, or other protected class (anti-Discrimination laws still apply).

PART III:

WHAT ARE SOME COMMON COMPANY CONCERNS RELATING TO SOCIAL MEDIA?

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SOCIAL MEDIA RISKS FOR COMPANIES / EMPLOYERS

Social Media should be monitored by companies -- Social media is ubiquitous these days – there are continuous private and public dialogues online. Even if a company is not experiencing outright trademark infringement or actionable torts, a company’s brand may still be talked about on Social Media sites.

Social Media risks and legal issues do not even need to originate from others – they can also come from a company or organization’s own employees.

Employee use of Social Media sites can have a strong impact on a company or organization’s trademarks and its entire brand.

Examples of a few of the potential risks:

Employees may post content either willfully or inadvertently which may infringe other companies’ Intellectual Property or which may defame others;

Employees and representatives may post controversial content on social media sites that have a strong, negative impact on a company’s brand;

A company’s employees may inadvertently disclose confidential information or trade secrets, without being aware that they are doing so.

WHO OWNS A SOCIAL MEDIA ACCOUNT?

Eagle v. Edcomm (2013) represents one of the first cases to deal with the issue of who owns a social media account that an employee created but which was used to promote an employer -- the individual employee who first created the account or the employer whose business was promoted using the account?

In Eagle a company's founder sued her former employer for the alleged illegal use of her LinkedIn account. Court held that employer's conduct, absent a company social media policy, resulted in the torts of unauthorized use of name, invasion of privacy by misappropriation, as well as misappropriation of publicity.

What companies / employers need to think about in the context of employee’s use of social media:

Who owns the computer, device, and social media account being used? The network and storage facilities for the messages. Whether the messages are being sent on employer or employee time. Whether the employee affiliates themselves with the employer in his/her

messages or uses a different identifier.

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COMPANY SOCIAL MEDIA POLICIES

Even if a given company or organization isn’t actively involved on social media, their employees, officers, and/or customers may be. Some type of comprehensive social media policy / strategy is often a necessity. According to one 2009 survey, only 29% of companies have an official social media policy (Source: 2009 Manpower Survey)

Social Media policies will vary in complexity depending on company size, assets and industry. One immediate focus is to protect against Intellectual Property and other risks in employee communication. Possible first steps can include:

Step #1 – Protecting Other Parties’ IP: Educate employees and even clients to recognize the different types of protected Intellectual Property. Enforce a social media policy that prohibits employees from the following: Copyright and Trademark infringement Defamatory statements Endorsing goods on behalf of the company, creating a misleading association.

Step #2 – Protecting a Company’s Own IP: Educate employees about social media risks and intellectual property protection; Monitor the company’s brand; educate employees on proper Trademark usage; Keep track of all Intellectual Property assets and educate employees on such; Enforce a social media policy prohibiting:

Disclosure of trade secrets or company confidential information; Misuse of the Company’s Trademark.

TOPIC 4

ATTORNEY ADVERTISING: SOCIAL MEDIA TRENDS:

LINKEDIN USE FOR BUSINESS DEVELOPMENT

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LINKED IN: WHAT IS IT?

The premier business social networking site Primarily for individual visibility but offers a

company page/’mini web site’ as well Works on ‘six degrees of separation’

But everyone meaningful is 1-2 degrees apart

Over 200M Members

5

0

100

200

Jan2011

Jan2012

Jan2013

Members (Millions)

Members(Millions)

LINKED IN: WHY TALK ABOUT IT?

Appropriate medium for lawyers to become more visible and build relationships

Can be done within Attorney Advertising rules and without negative legal ramifications

No cost – they only cost is time

5

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Before a first meeting, 80% of people look up the person on LinkedIn

Over 25 million LinkedIn profiles viewed every day*

Prospective clients alternate between website and LinkedIn

Personalizes business - and otherwise formalized interactions - to a great extent

“ice breaker” on both sides

LINKED IN: BUILDING THE CASE

2

* Source: Shift Digital

Out-of-town peers need local referral LinkedIn messages and InMails: Seven times

the open rate of regular email Find “client alumni”

Worked at a client, left, and remember your work

Personal example: Set up meeting with Chief Marketing Officer at The Conference Board through LinkedIn

LINKED IN: BUILDING THE CASE

3

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HOW USE FOR RELATIONSHIP DEVELOPMENT

“Sharing an update” an event that you help organize or are speaking at

Group Discussions – Listen. Comment. Initiate.Sample Examples From Lawyers A trademark attorney met ~30 Fortune 500 GC’s

based on relationships that started on Linked NY Law firm partner invites her clients and valued

contacts to her speaking engagements using LinkedIn. (firm invites are blocked as SPAM)

HOW USE FOR BUSINESS DEVELOPMENT

More Examples One partner who wanted little to do with LinkedIn

consented to having a profile built. Two days later, he was on his way to a lunch meeting with a prospect who found him.

An Associate at a large firm built his practice with five significant energy-industry clients almost exclusively through LinkedIn.

Another NY-based partner formed one of the most active LI groups in the country, and realizes new matters from those contacts on a regular basis. “

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YOUR LINKEDIN PROFILE – THE FOUNDATION

1. Professional Headline2. Professional photo3. Summary4. Briefly describe positions, especially current5. Strong profile strength6. Add certifications and licenses7. Add an “Organization” or volunteer activity8. Interests (some personal information)9. Project, publication, language or honors

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Paint a picture of yourself and your professional passions

PROFESSIONAL HEADLINE - EXAMPLE

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FUNDAMENTAL TOOLS

1. Connections - recommend at least 100 “archive” or question invites you’re not going to

accept personalize Invites

2. Recommendations – Good for lawyers but: Some debate – advisability for lawyers Careful in providing as quid pro quo

3. Status Updates – Monthly or quarterly4. Advanced People Search

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IF YOUR TIME IS LIMITED…

Check out profiles of everyone you meet in advance

Question invites from people you do not know Join a limited number of groups and check

posts once a week Use LinkedIn as a tool during prospecting

Check Advanced people search

“Share and update” at least once a quarter on a meaningful professional activity

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QUESTIONS? CONTACT US

Ron Idra, Esq.

Founder & DirectorPromotion for [email protected](855) 860-3300www.pfpfirm.com

Bruce K. Segall

PresidentMarketing Sense for [email protected](914) 980-4703www.marketingsense2.comwww.linkedin.com/in/brucesegall

About the Presenters

Bruce K. Segall is President of Marketing Sense for Business LLC, which provides outsourced business development & marketing services to professional services firms, focusing on the law. He has worked one day a week since 2010 for the law firm Keane & Beane P.C. and trains lawyers and others regularly on using LinkedIn. Previously, he had 25 years’ marketing experience in large companies & smaller firms. Bruce has a B.A. in American Studies from Yale and an MBA from Stanford.

Ron Idra is the founder of Promotion for Professionals, www.pfpfirm.com, a complete, one-stop shop for attorneys, law firms, and other professionals and businesses seeking a cost-effective way to leverage the internet and a consistent brand to broaden their marketing reach. A former practicing IP attorney, Ron has nearly 10 years’ experience in law firms and contracting to corporations before entering the marketing field. He is the author of "The Complete Licensing Kit," a book for the layperson on the basics of intellectual property and drafting licenses (Sourcebooks, 2007). Ron has a B.A. from Brooklyn College and a J.D. from the New York University School of Law.

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