Who owns the Twitter followers at your law firm?

Tech Journalist and Author, John Biggs (@johnbiggs) had a story in the New York Times yesterday regarding the lawsuit in which Phonedog.com is claiming ownership of the Twitter account an employee started while working at company.

In October 2010, Noah Kravitz, a writer who lives in Oakland, Calif., quit his job at a popular mobile phone site, Phonedog.com, after nearly four years. The site has two parts — an e-commerce wing, which sells phones, and a blog.

While at the company, Mr. Kravitz, 38, began writing on Twitter under the name Phonedog_Noah, and over time, had amassed 17,000 followers. When he left, he said, PhoneDog told him he could keep his Twitter account in exchange for posting occasionally.

The company asked him to “tweet on their behalf from time to time and I said sure, as we were parting on good terms,” Mr. Kravitz said by telephone.

And so he began writing as NoahKravitz, keeping all his followers under that new handle. But eight months after Mr. Kravitz left the company, PhoneDog sued, saying the Twitter list was a customer list, and seeking damages of $2.50 a month per follower for eight months, for a total of $340,000.

I view Twitter as personal in nature. Much like a rolodex or a book of personal relationships one has.

But many law firms view Twitter as a means to brand the law firm, a law firm blog, or a law firm practice group. Rather than focus on relationships and reputation, marketing departments can place the firm brand above all else. “We don’t want a lawyer to build a name for themselves and then leave with our clients.”

Could a law firm prevail in claiming an attorney’s Twitter account is owned by the law firm?

LexBlog Network member Attorney Peter Vogel (@PeterSVogel), thinks it will be an uphill battle for Phonedog to prevail.

In order to be a trade secret in the US a company must be able to prove that the secret gives a company a particular business advantage and the owner has properly protected the trade secret.

Here Phonedog.com is asserting that Twitter followers are customer list (a trade secret), however the details about Twitter followers identity are stored on Twitter. Twitter’s Terms of Service do not obligate Twitter to keep any information secret. As a matter of fact, if you search the Twitter Terms of Service the word “secret” is nowhere to be found.

New York IP Attorney Henry Cittone (@hcittoneiplaw), speaking to Biggs believes Phonedog has a chance.

It all hinges on why the account was opened.

If it was to communicate with PhoneDog’s customers or build up new customers or prospects, then the account was opened on behalf of PhoneDog, not Mr. Kravitz. An added complexity is that PhoneDog contends Mr. Kravitz was just a contractor in the related partnership/employment case, thus weakening their trade secrets case, unless they can show he was contracted to create the feed.

What should you do as an attorney to protect yourself?

Open your Twitter account in your name, perhaps under your personal email address, and use a Twitter handle that does not include your firm’s name, your blog’s name (if you’re writing for a law firm blog), or a practice group’s name.

You could go a step a further memorializing that you as the attorney, not the firm, owns your Twitter account. Adding a provision in your social media policy or a separate agreement would do the trick. But much like a prenuptial, you’re signaling a break up at some point and you’ll need to decide how that will sit with your firm.

What should you do as a law firm?

I’m with Sree Sreenivasan (@sree), a professor at the Columbia Journalism School and the author of Sree’s Social Media Guide, who told Biggs companies should let social media blossom where it may.

It’s a terrible thing to say you have to leave your Twitter followers behind. It sends a terrible signal to reporters and journalists who care about this, and this will make it less attractive to recruit the next round of people.

Business development in law firms comes from relationships and one’s word of mouth reputation. Law firms ought to be rally behind lawyers building relationships and their word of mouth reputation online. It’s good fortune to have an innovative lawyer who sees Twitter and the net in general as a means to bringing in good legal work.

Also realize that Twitter accounts in individual attorneys’ names are going to build much more of a following than a Twitter account in the law firm’s name. Twitter is all about trust. And on the net trust is more likely to be built and nurtured person to person than from a law firm brand.

You can use Twitter accounts in the name of the firm for sharing word about the firm, and if you feel the need, to share content produced by the firm’s lawyers. Though those accounts may build less of a following than individual attorney’s Twitter accounts, you can still build the firm’s brand by doing so.

I don’t expect a dispute such as the Phonedog lawsuit to arise between a law firm firm and a departing attorney. Word of such a dispute spread across blogs such as Above The Law and major news sites would be opposite of good PR for a law firm. But law firms have done stranger things.