As our collective online presence continues to expand and each individual’s social media activity deepens, lawyers now frequently confront legal issues with respect to their client’s use of internet sites. Yet, there remain few decisions, and even fewer laws, regulating what is legal and ethical for both lawyers and litigants while a court case is pending. Unless lawyers actively engage, educate, and monitor their client’s social media presence, problems may arise, often with disastrous consequences. In an effort to highlight some of the most common social media issues with litigation clients, we have created the following list of Quick Tips. Combining these tips with some proactive client management, you can avoid surprises and prevent damaging online material from negatively impacting your cases.
1. “Social Media” is not just Facebook and Twitter. Rather, social media encompasses any website or blog where activity is posted and tracked, or those that allow comments and user-generated content. This includes, but is not limited to Instagram, LinkedIn, Google Plus, Pinterest, Groupon, LoveIt, LivingSocial, Yelp, Reddit, CaringBridge, MySpace, etc. Every click, every comment, and every post can be a potential treasure trove of usable information against any party. Clients must understand that they use these sites at their own peril.
2. If you Tweet, don’t delete. Have you heard of the case Lester v. Allied Concrete Co.? You need to. The case involved information that a wrongful death client posted on Facebook. His attorney instructed him to “clean up” his page, and he deleted some distasteful pictures and deactivated his account. Then, they both lied about it. The court sanctioned the attorney for $542,000 and the Plaintiff for $180,000. The lesson here is that destroying evidence (i.e. spoliation) isn’t just shredding documents in a back room – it happens when you hit the Delete button.
3. You can look, but you can’t link. The New York State Bar has issued an ethics opinion outlining what a lawyer can and cannot do with adverse parties. Lawyers may view the public postings of adversaries, but cannot “friend” an adversary represented by a lawyer. Lawyers also may not use deception to “friend” someone. See New York State Bar Ethics Opinion 843.
4. Here today, gone tomorrow? Given the constantly changing nature of online websites and the content they display, a page that appears and looks a certain way today may not be there tomorrow. Further, the fact that a website user has limited control over content and display means that preserving online information needs to be done quickly and carefully. Simply printing a page may lose the look and feel of how it appears on your screen. Consider using web-based video programs like Screencast-o-matic.com or Camtasia to create a video recording of you navigating and viewing web pages as they normally are displayed online.
5. Defense firms don’t need private investigators, they have the internet. The days of defense firms hiring a private investigator to peek into your backyard with a camera are just about gone. Instead, firms and companies log on to commonly used websites and search for your clients easily and cheaply. Just because you aren’t being followed by a man in a trench coat holding a camera doesn’t mean that another party isn’t watching everything you post online.
While these 5 Quick Social Media Tips do not encompass the full spectrum of issues that can arise with a client’s use of social media sites, they provide a strong foundation for educating and steering a client toward a more mindful online presence. Remember, if you are not trying to get out in front of these issues before they come up, you may be forced to deal with them after they become a problem.