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Dennis M. Kennedy Dennis M. Kennedy
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Denise Howell is a seasoned appellate and intellectual property litigator based in Los Angeles. Denise writes one of the first and most popular law-related blogs, Bag and Baggage, coined the term "blawg" and helped pioneer podcasting for lawyers. Microcontent obsessed since 2001, she is frequently quoted in the media on legal issues involving intellectual property and technology law. "Sound Policy" is Denise's show at IT Conversations, and it's also what she hopes results from the briefs she submits to court. Email Denise at dhowell@gmail.com.

Dennis Kennedy is a computer lawyer and legal technology expert based in St. Louis, Missouri. An award-winning author, a frequent speaker and a widely-read blogger, he has more than 300 publications on legal, technology and Internet topics, many of which are collected in his e-books. Dennis has been described as someone who knows almost every rock song in existence and, more importantly, how they apply to technology and law. Email Dennis at his gmail address.

Tom Mighell is Senior Counsel and Litigation Technology Support Coordinator at Cowles & Thompson in Dallas. He has published the Internet Legal Research Weekly newsletter since 2000 and blogged about the Internet and legal technology at Inter Alia since August of 2002. With Tom's singing, Ernie on guitar and Dennis' encylopedic knowledge of rock music, we may have the beginnings of a good band, if this whole blog thing doesn't work out. Email Tom at tmighell@swbell.net.

Marty Schwimmer left a partnership in the largest trademark practice in the world and founded Schwimmer Mitchell, a full-service IP micro-boutique in Westchester County, New York, where he represents owners of famous and not yet famous trademarks. He founded The Trademark Blog, the first IP law blog and the one with the most pictures. He is the first to come in and the last to leave in his firm. Email Marty at marty@schwimmerlegal.com.

Ernest Svenson practices law with a mid-sized law firm in New Orleans, specializing in business-related lawsuits. Most of his practice takes place in federal court, especially the Eastern District. He is best known for his weblog Ernie the Attorney, which he started as an experiment. Like many experiments it got out of control. Nevertheless, he continues to practice law and, occasionally, to seek enlightenment. Email Ernest at esvenson@gmail.com.
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Between Lawyers provides just-in-time group commentary on the issues raised when technology, culture and the law intersect. We take you behind the firewalls and conference room doors to show you how experienced lawyers deal with these issues and help you prepare for the new challenges we all face. For more, see our introductory post.
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« Covington & Burling on Blogging | Main | BIO 2005 »

June 20, 2005

Dennis Re Covington & Burling on Employeee Blogging

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Posted by Dennis M. Kennedy

I've looked all over the Covington & Burling website and can't find that the firm has a blog. Would someone help me out by directing me to the URL of the C & B blog? I'm sure that I'm just overlooking it.

Anyone else wonder about the credibility of advice on blogging policies from law firms that do not have blogs? I'm not being critical - I just raise the question.

I haven't had the chance to read the C & B article yet, because it locked up my browser when I tried to download it. Perhaps that makes me a bit irritable, but I still have a funny feeling that the article will take a rather negative view of blogging and highlight lots of dangers of blogging that can be solved only by using the services of a firm like C & B.

Certainly, law firms have every right to take these marketing approaches, and I'm not being critical, but I personally am more interested in the conclusions and recommendations of lawyers who have experience with their own blogs than those who seem to be jumping on a fad of creating a blogging policy practice area.

I'll reserve judgment on the C & B article until I am able to read it.

I still like the discussions and resources we've mentioned and collected on Between Lawyers are the best place to start research on "blogging policy" issues, but I may be a little biased.

Comments (10) + TrackBacks (0) | Category: Blogging Policies


COMMENTS

1. Aaron on June 20, 2005 12:25 PM writes...

http://www.cov.com/publications/download/oid57969/e-alert_technology_software_050417.pdf

That's the link to the article, and, surprise surprise, they are HIGHLY critical of ANY benefit a blog could conceivably have. It sounds like the author of the "recommendation" was beaten by a blog as a small child and is now emotionally scarred.

Aaron Weidenhaft - LA lawyer wannabe

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2. Ron Friedmann on June 20, 2005 3:37 PM writes...

I disagree on this one. Law firms don't regularly engage in many activities about which they render advice. When's the last time Wachtell Lipton merged? Yet they are the leading M&A firm.

I am an advocate of large law firms delivering their already free updates via blogs, but I don' think that lack of a blog precludes a firm from understanding the legal issues or rendering reasonable advice. (I'm not a practicing lawyer, but the Covington memo seems reasonable to me.)

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3. Evan Brown on June 20, 2005 5:06 PM writes...

I found the article to be very informative and well-balanced. Certainly it started off in the obligatory lawerly fashion of warning of all the potential pitfalls. Overall, however, the message I took away from it is the quite reasonable notion that "the better approach may be to balance the positive aspects of the blog with appropriate safeguards against the greatest risks." Certainly no "the sky is falling" hyperbole there.

And I certainly agree with Mr. Friedmann (the previous commenter) that not having a firm blog does not disqualify one from knowing about the legal issues and the attendant nuances of the medium. I get the impression that the author of the article knows his or her stuff when it comes to blogging. I'm not convinced that firm weblogs will ever be all that anyway. I would much rather read the perspectives of knowledgeable individuals over a monolithic, sanitized firm message any day. The irony that the article we're discussing here is such a message is not lost on me.

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4. Ken Ebanks on June 20, 2005 6:40 PM writes...

As the Covington lawyer heading up our blog initiative (and one of the guys responsible for the employee blogging piece), I just thought I'd weigh in on this discussion. Dennis is right that we don't have a firm blog -- but as Evan and Ron note, that shouldn't mean we can't comment on the legal issues associated with blogging. I absolutely support lawyers blogging, but trying to do it on behalf of a large, diverse law firm is simply too complicated and time consuming an endeavor for me to contemplate at present. Maybe I'm just too cautious. (For example, I'd probably feel compelled to undertake the pesky step of actually reading an article before I drew negative conclusions as to its contents ...) But I still believe we can have something positive to contribute to the dialogue.

In any event, as to the substance of our piece, we certainly tried to be balanced. (Maybe Aaron lost interest and missed the second half?) We're actually pretty pro-blog, and tried to highlight both the positives and the negatives in our advisory. It is, after all, our job to advise clients of both the benefits and the risks. And by advocating the creation of blog policies that facilitate responsible employee blogging, my hope is that we're actually supporting the growth and development of the blogosphere.

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5. Dennis on June 20, 2005 7:55 PM writes...

Whoa, guys. If I had said the things that you are disagreeing with me about, I'd be disagreeing with them, too. Let's not jump to conclusions - I was very careful in what I wrote.

I'm not "precluding" anybody from doing anything or writing about what they want. As I simply said, I'm personally more interested in the opinions and analysis of lawyers who have been blogging for a while when it comes to this specific issue. I'd like to see how they incorporate their personal experience into the legal analysis.

I thought that I was stating the obvious when I said that lack of experience in blogging might affect an author's credibility on this topic. That's 180 degrees different than saying that they have no credibility on the topic. I raise it as part of the everyday question of how do we determine that someone is credible and how do we read material critically on the Internet.

As I said several times in my post, I hadn't read the article when I made the earlier post, so I obviously didn't make any comments about the substance of the specific article, although I probably unfairly speculated on whether it might fall into the genre of scary blogging policy articles. Now that I've read it, I'll agree with Ken that, even though the introduction is a little over-the-top in setting out negative scenarios, it's readily apparent that he made an effort to be balanced. It's a good introductory article and the fact that it blew up my browser this morning probably caused me to be more snippy about it than I should have been.

At the end of the article, however, I'm still wondering why blogging is not covered under corporate technology usage and communications policies or employee manuals and why there is a need for stand-alone blogging policies. That's the context in which I like to discuss these issues. I haven't been convinced that blogging raises such novel issues that it requires a whole new genre of technology use policies that are considered outside the context of the related policies.

The C & B article also touches upon, but doesn't expand upon, the issue I consider the most important in this area - the training that should go hand-in-hand with any of these written policies.

My main comment on the article is that I wish the sensationalized introductory paragraph would have been replaced with the second-to-last paragraph, which is something I agree with whole-heartedly and which would have earned the "money quote" designation if I had written a substantive post about the article:

"Clearly, not every employee blog will reflect poorly on an employer or disclose sensitive information. On the contrary, blogging employees may be among the most creative, entrepreneurial and technologically savvy members of an organization, and may serve as powerful advocates for the companies they work for. Given that, and in light of the risks in banning off-site blogging, the better approach may be to balance the positive aspects of the blog with appropriate safeguards against the greatest risks."

Ken, don't be so damn cautious - start that blog. I'll help you launch it, as a favor for reading this blog and posting such a good comment. My suggestion, however, is that you'll enjoy blogging a lot more if you do your own blog rather than trying to start an "official" firm blog. I really think that you meant what you said in the article - "blogging employees may be among the most creative, entrepreneurial and technologically savvy members of an organization, and may serve as powerful advocates for the companies they work for." That could be you, right?

Thinking about blogging policies really gets interesting when you accept that statement about blogging employees as your premise and try to design policies, procedures AND training that are appropriate in that context.

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6. Bob Coffield on June 21, 2005 8:53 AM writes...

I've found the ongoing discussion of employer blog policies on Between Lawyers and other blogs very interesting over the last few months. The area is ripe with issues for employment lawyers and others.

The power of blogs as a medium for employees is just beginning to hit the mainstream. We can all cite examples of how blogs are used to advantage and disadvantage employers. One recent case that I have been following is that of Elisa D. Cooper (aka Diva of Disgruntled) who was formerly employed by Kaiser Permanente. Although I have reported a bit on this on my blog and have seen it on some of the other health care blogs, I haven't seen a lot of discussion on this case in the context of legal blogs discussing blogging policies. Although it is still developing, I find it fascinating from a "case study" standpoint. It continues to raise multiple issues -- rights of employees to blog, rights of employers to restrict employee blogs, privacy issues, use of blogs by individuals to disagree with and combat large institutions, use of blogs to bring issues to the attention of oversight agencies and the list goes on.

I agree that the C&B article is a good starting point for employers to start considering and discussing the impact of blogs on business and employment issues. Heck, half my time these days is just spent explaining what a blog and RSS reader is. I also agree with Dennis that this is the type of policy that needs to added to employee handbooks. However, I am reminded of the time when my clients started talking to me about developing email and internet policies for employees when this started becoming an issue for employers. At the beginning most of these were stand alone policies -- merely because it was a new employment technology issue for employers and employees to address. As time went by these policies got moved into the employee handbook. I suspect we are embarking on a similar course for blogging policies.

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7. Ken Ebanks on June 21, 2005 12:53 PM writes...

Thanks for the useful feedback, guys. Dennis, I think you're absolutely right that most of the issues raised by blogging should be, and ultimately will be, dealt with in standard technology or employment policies. Bob's analogy to email is a very good one. At the moment, we're paying lots of attention to how to deal with blogging, and trying to figure out the rules. But once this period of uncertainty and upheaval is done, I suspect blogging will just become part of our daily lives -- like the Web or email, something we can't readily imagine life without.

And thanks for the encouragement to blog, Dennis. For now, I'll probably remain a reader and occasional commentator, but I certainly applaud those who take the time and effort to do it. (In reality, my reluctance may be based as much on laziness as caution). But down the road ... who knows?

Bob, great heads-up on the Elisa Cooper case. I haven't heard much about it, so I'll make a note to follow that one too. Sounds like we've got new law developing all around us.

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8. Ray on June 21, 2005 2:29 PM writes...

My off-the-cuff, unthought-out opinion: No company needs a blogging policy, that is, a policy that singles out blogging.

A company may need a policy against disclosing confidential information, regardless of the medium use to disclose. Whether the disclosure is by word of mouth, by email, or by blog post, the sin is the same: unauthorized disclosure.

And a company may need a policy against employees' wasting time on company time. From the company's perspective, posting to a personal blog on company time should not be different from writing personal letters or reading a magazine on company time.

Companies need policies, and may need some that apply to blogging. But policies that single out blogging fail to address the whatever the real problem is.

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9. Aaron on June 21, 2005 8:12 PM writes...

Ken Ebanks made a valid point by noting that it looked like I hadn't read the second half of the article when I made my short and extremely snippy comment, but I think Ray (the last commentator) hit the nail on the head. If you have a blogging policy, and the first half of that blogging policy is so overwhelmingly cautionary and negative (The first paragraph: "It has just come to your attention that one of your most valued employees is the author of a daily blog...Besides removing him from your Holiday card list, what do you do?"), it really doesn't matter what the second half says. The second half of the publication is an attempt to make the official stance of the lawfirm not look draconian, but it does not negate what was already said. You have effectively scared every associate and maybe many partners without seniority from even mentioning blogging in the office out of fear of retribution and excruciating scrutiny which could lead to retribution. If I worked at that lawfirm, that publication would scare me away from doing so, and I don't think that sentiment is a radical one.

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10. Julian Biggs on June 25, 2005 2:47 AM writes...

Aaron:
The Covington piece is not a "blogging policy," it's a client advisory. i.e. a memo to Covington's clients (who are generally employers rather than employees). In writing it, the job was to serve the clients’ needs by alerting them to a new issue and pointing out the potential risks and rewards. That’s what lawyers do. The piece was not meant to proselytize for blogging nor to campaign for its prohibition.

Dennis:
In providing risk/reward advice to employers about employee blogging, I would say that personal experience as either an employee or an employer (or both) would be more valuable than personal experience with blogging (given, of course, a decent knowledge of the medium and the legal issues).

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