Legal Technology Journal

The rise and rise of weblogs is undeniable but many firms have failed to grasp that this is a double-edged sword – they may be able to get their message out more quickly, but it is now easier than ever for people to criticise them in front of a worldwide audience.

Blogs have shown a dramatic rise in numbers over the past few years. The blog search engine Technorati (www.technorati.com) is now tracking over 50 million blogs. To put this into perspective, the so-called blogosphere is over 100 times bigger than it was just three years ago and it is doubling in size every 200 days, or about once every six and a half months.

It is my belief that the blogosphere is going to have a very significant impact on the way that law firms conduct themselves on client business and in their own internal affairs. 

This article will consider the topic of blogging and how it is already beginning to impact the legal profession by looking at two recent cases involving two well-known law firms – Baker & McKenzie and Reed Smith.

Baker & McKenzie and Boing Boing

In the run-up to the FIFA World Cup last summer, international law firm Baker & McKenzie and its client, Infront Sports & Media AG, which possessed the exclusive broadcast rights to the World Cup games, were determined to prevent any copyright infringement.

With this in mind, a letter signed by ‘Baker & McKenzie’ was sent to thousands of websites and internet service providers warning them of the perils of unauthorised downloading of the World Cup matches.

The letter stated that the law firm’s client, Infront Sports & Media, ‘anticipates the possibility of unauthorized streaming and downloading of FIFA World Cup matches’ and went on to warn that Baker & McKenzie will be ‘actively monitoring your website… to identify unlawful activity and will, if necessary, take appropriate action to ensure the protection of Infront’s rights of those licenses’.

This move appeared to backfire when Boing Boing, a hi-tech blog with 1.75 million daily visitors, posted the letter and proceeded to criticise the firm’s good name and effectively launch a campaign against it.

The response of the blog was unintimidated with one of its writers commenting:

Oh brother. I don’t even know what the FIFA World Cup is. I’m guessing it’s soccer, which I hate just as much as any other pro sport. Every editor at Boing Boing detests professional sports, and we would sooner stream a video of a crumpled up paper napkin in the corner of a room than show some jackasses running after a ball. The only time we would ever post anything about pro-sports would be to make fun of them.

Boing Boing also took the step of launching a campaign against the law firm such as linking to a Mail on Sunday article that made allegations against one of Baker & McKenzie’s solicitors and then linking to a number of posts from other weblogs that had picked up on the story.

There was a significant increase in the number of blog posts about Baker & McKenzie on the web and most comment was negative.

Furthermore, some of Boing Boing’s users started to get involved, and one individual started making allegations about the chief executive of Infront Sports & Media, Oscar Frei, that he had exaggerated his record at Harvard Business School. Boing Boing took the step of publishing this on its site.

It should be recognised that not all the posts were critical about the law firm. For example, there was one well-known United States blogger, Dave Taylor, who wrote:

Yes, the letter is heavy-handed, with threats like ‘you should be aware that Infront and its agents are actively monitoring your website and others to identify unlawful activity…’ but I am again dismayed at the reaction to legal and corporate activity in the blogosphere, and from Boing Boing, one of the most popular weblogs on the Internet.1

Overall, have there been any regrets from the law firm? It does not look that way. Baker & McKenzie partner Michael Hart has gone on record as standing by the strategy:

I think the letters had some benefit, definitely. We know of various instances of people who hadn’t been aware [of Infront’s rights] saying, ‘Thank you for letting us know.’2

Nevertheless, there has been an effect on the firm’s online profile. If you search for Baker & McKenzie in Google the fourth entry to come up is the post (article)3 where the blogger Dave Taylor wrote his views on this matter.

Whilst Baker & McKenzie can take heart from the fact that this was one of the few posts written about the law firm that was not generally critical of its conduct, there were 15 comments on Dave Taylor’s post that were generally negative about the actions of the law firm.

There also negative entries made about the law firm on the 19th and 20th entries of a Google search which are the post by Boing Boing and a response to that post by an American blogging expert, Kevin O’Keefe.

Effectively within the top 20 entries on Google, three refer to this particular litigation and the law firm has not communicated its message in such a way to have been picked up by Google.

Denise Howell and Reed Smith

The American intellectual property lawyer, Denise Howell, one of the pioneers of United States legal blogging and one of its most well-known supporters, was dismissed in July 2006 from United States law firm Reed Smith.

Whilst there was some form of confidentiality agreement in place, Howell took the step of posting about her dismissal on her weblog and offered her thoughts on large law practice, balancing work and family and the importance of doing what you love.

She wrote on her blog that ‘I’m leaving Reed Smith now because I was fired last week’, and went to make some comments about work/life balance issues:

Before it can successfully play a role in recruiting and retaining talented people, ‘work-life balance’ has to be more than a buzzword in a firm-sponsored Q&A that could readily fuel a Jeremy Blachman parody.

The reaction to news of the dismissal was immediate, with an outpouring of posts on the blogosphere in support of Howell, many of which were critical about the law firm. For example, it was covered twice by Legal Blog Watch, which is one of the most highly ranked law blogs on the web and is part of the American Lawyer Media network.

What is more interesting is how much lasting damage the firm’s online profile suffered as a result of the fallout. After seven weeks of Howell going public with her dismissal, a Google search on 6 September 2006 revealed the impact.

On page 1 of a Google Search this entry appeared at number 9:

Robert Ambrogi’s LawSites: Reed Smith’s blogger buzz

In one of my posts yesterday about Reed Smith’s termination of Denise Howell, … They show huge surges in blogger mentions of Reed Smith and Denise Howell … www.legaline.com/2006/07/reed-smiths-blogger-buzz.html - 21k - Cached - Similar pages

On page 2 the entries from 13 to 16 were as follows:

Denise Howell leaving Reed Smith – Ross’ Employment Law Blog

Denise Howell leaving Reed Smith July 16, 2006. Denise M. Howell Denise Howell, a beacon to law bloggers, says her law firm fired her. … www.lawmemo.com/blog/2006/07/denise_howell_l.html - 23k - Cached - Similar pages

LexBlog Blog : Reed Smith launches women’s career forum and sacks …

Reed Smith fired Denise Howell, a leading blogger, IP lawyer, … Listed below are links to weblogs that reference ‘Reed Smith launches women’s career forum … kevin.lexblog.com/…/reed-smith-launches-womens-career-forum-and-sacks-female-blogger/ - 35k - Cached - Similar pages

LexBlog Blog : Reed Smith Internet discussion up 50% upon firing …

I’d be scared as hell if I was working at Reed Smith and this guy was the … Listed below are links to weblogs that reference ‘Reed Smith Internet … kevin.lexblog.com/…/reed-smith-internet-discussion-up-50-upon-firing-of-lead-blogger/ - 34k - Cached - Similar pages

DennisKennedy.blog: Is This What They Teach at Reed Smith University?

Saturday, I learned on Denise’s blog, Bag and Baggage, that Reed Smith had … Since Reed Smith has engaged in some merger activity recently and there were … www.denniskennedy.com/blog/2006/07/is_this_what_they_teach_at_reed_smith_univers.html - 33k - Cached - Similar pages

Conclusions

In both instances, the response of the law firms online was weak. Neither law firm possessed a blog to address allegations, nor did they attempt to deal with the issues placed on others’ blogs. It should be borne in mind that both law firms could argue confidentiality reasons, but we do now know that at least one Baker & McKenzie partner has spoken to the mainstream media about the firm’s litigation strategy.

Furthermore, both law firms have suffered damage to their brands. As Chris Anderson writes in The Long Tail: How Endless Choice Is Creating Unlimited Demand (Random House Business Books, 2006):

For a generation of customers used to doing their buying research via search engine, a company’s brand is not what the company says it is, but what Google says it is. The new tastemakers are us. Word of mouth is now a public conversation, carried in blog comments and customer reviews, exhaustively collated and measured. The ants have megaphones.

With the growing number of people searching for services online (including lawyers), both cases have had a direct impact on the firms’ Google profiles. Baker & McKenzie may be seen as over-aggressive and Reed Smith may be perceived as not possessing family-friendly policies for its lawyers.

In addition, the open source movement, which plays a role in the collaborative nature of blogging, means that anyone can appear as an opponent or an ally of another. With the ease with which a blog can be set up, a lawyer needs to recognise there is an increasing risk that postings will be made in opposition to a legal case and the fact that allegations can spread quickly online.

Finally, lawyers need to give consideration to how they are going to engage in the blogosphere, but they need to recognise limitations as well. They do not have skills or aptitudes within media communication. Law firm media relations expert Sue Stapely highlighted some of the issues relating to communication in the Law Society’s Gazette (‘When reputations are on the line’, 20 July 2006):

Lawyers’ risk-averse nature means firms are full of ostriches that prefer to go to ground when uncomfortable issues surface… The approach of reputation management specialists and lawyers is often diametrically opposed. Good communication involves speaking up fast, filling the information vacuum, taking ownership of the issue and, if necessary, apologising… This is essential if the situation is to be contained and the organisation under scrutiny is to recover. Most lawyers – media-averse, detail-oriented and cautious ever to admit liability – find this approach counter-cultural… Dangerously, many lawyers also believe that if they are able advocates and successful practitioners their skills will transfer seamlessly to media interviews and areas of law in which they have no real expertise.

The article does not refer to the blogosphere, but clearly the issues covered are relevant there. 

Justin Patten is a solicitor and the principal of the Human Law law firm.