A Practice Smart(TM) Feature
By: By Tad Thomas, Esq.
If you’re a sports fan you probably watch ESPN at least once a day and, if you do, at least once a day you also see an article about some athlete that got into trouble for “tweeting” something he or she shouldn’t have. Social media gives everyone a voice that connects us with the entire world in a matter of seconds. While empowering to our clients, this unprecedented ability to be heard can cut both ways in litigation. Cases are torpedoed when clients post to a multitude of social networking sites like Instagram, Twitter, Tumblr, Vine, Path, and Google Plus.
Discovery requests for social media postings have become pervasive, leaving lawyers in the unenviable position of having to not only protect their clients from mishaps but also exercise due diligence in investigating the opposing parties, witnesses, and jurors. Attorneys who fail to undertake efforts to look into the social media pages of the opposition likely fall below the appropriate standard of care and fail to exercise proper due diligence. Social media has become a minefield for the unprepared because it implicates multiple ethics rules.
The ABA model rule on competence1 requires attorneys to be knowledgeable regarding what social media is, what it provides, and how it is used. No attorney can properly represent a client in litigation without at least a basic understanding of social media. Your duty of diligence requires you to use this knowledge in furtherance of your client’s case, whether that is advising a client about the proper use of social media or reviewing the defendants’ and witnesses’ social media pages.2
When investigating an individual’s social media usage, generally speaking, public information is fair game. The consensus among ethics opinions throughout the country is that an attorney can search any information that someone puts out for the entire world to see. In New York, for example, “A lawyer who represents a client in a pending litigation, and who has access to the Facebook or MySpace network used by another party in litigation, may access and review the public social network pages of that party to search for potential impeachment material.”3 For Facebook accounts, this would include any information not shielded by the user’s privacy settings.
There is an exception: The New York City Bar Association has held that viewing a potential juror’s public online profile may inadvertently cause a prohibited “communication.”4 While the opinion deals with researching jurors on the Internet, the bar association stated that if a juror learns of an attorney’s viewing, or attempted viewing, of his or her information, this would constitute a prohibited communication with the juror. This opinion could logically extend to a party learning of a viewing or attempted viewing by the opposing counsel; this would constitute an improper communication with a party’s opponent.5
Facebook Friending (click to continue reading)
Traditional Discovery (click to continue reading)
Advising Your Client
The social media revolution has created a new challenge: what instruction to give clients. Failure to properly instruct your client and inquire into his or her social media usage clearly fall below an attorney’s standard of care.6 Early in the representation, advise clients to refrain from posting any case information on social media sites, because the posts may be discoverable during the course of litigation,
regardless of whether privacy settings have been set to allow only limited access. I require all clients to sign an agreement at the same time they sign the contract of representation, stating that they are aware that social media postings may be discoverable and that they will no longer post anything that could be considered relevant to their claims.
Tell your clients not to delete any information that was already posted on their pages. Recently, a Virginia lawyer was suspended from practice for five years for advising a client to “clean up” his Facebook photos after the defense requested screen shots and other information. After the plaintiff received a multimillion-dollar award, the judge found out what the attorney had done, imposed a $500,000 sanction on him, and reduced the damages award. The court ruled that the attorney violated his obligation of candor toward the tribunal and fairness to the opposing party and counsel and committed misconduct.7
Clients should also avoid deleting social media accounts entirely. In a New Jersey case, the court granted defense counsel a jury instruction that the plaintiff failed to preserve his Facebook account and intentionally destroyed evidence.8
Stress to your clients that their social media activities can ruin settlements, provide harmful information to opposing counsel, and break attorney-client confidentiality. They often do not understand the ramifications of their conduct and view their social media postings as mundane or not at all related to the case. Emphasize that seemingly innocuous content—such as pictures of horseback riding, riding a roller coaster, or attending a concert when you are trying to prove the plaintiff suffered a substantial loss of quality of life as a result of the accident—can damage a case. While you cannot order clients to delete information from their pages, there seems to be no restriction on suggesting that they increase their social media accounts’ security protections, which would limit the amount of publicly available information.
Without a doubt, the evolution of social media has changed the practice of law. As with any new technology, novel ethical issues have arisen, which bar associations across the country are addressing. However, regardless of the technology, the old rules still apply: Fraud is fraud; deceit is deceit. It doesn’t matter whether it is an investigator at someone’s door or a law clerk is searching Facebook. Attorneys have an ethical obligation to ensure that they and their employees are truthful, candid, and in full compliance with the ethics rules.
1 Model R. Prof. Conduct 1.1 (2013) (“A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”).
2 Model R. Prof. Conduct 1.3 (2013) (“A lawyer shall act with reasonable diligence and promptness in representing a client.”).
3 N.Y. St. B. Assoc. Comm. on Prof. Ethics, Formal Op. No 843 (Sept. 10, 2010). See also Phila. B. Assoc. Ethics Op. No. 2009-2 and Or. B. Assoc., Formal Op. No. 2013-189.
4 N.Y.C. B. Assoc. Comm. on Prof. Ethics, Formal Op. No. 2012-02.
5 I have found no other ethics opinions that hold that viewing a public Web page would be considered a communication in these circumstances.
6 N.Y. Co. Law. Assoc. Comm. on Prof. Ethics, Op. No. 745 (July 2, 2013) (what advice is appropriate to give a client with respect to existing or proposed postings on social media sites).
7 Allied Concrete Co. v. Lester, 285 Va. 295 (Va. 2013).
8 Gatto v. United Airlines, Inc., 2013 WL 1285285 (D.N.J. Mar. 25, 2013).
Tad Thomas is the principal of Thomas Law Offices in Louisville, Ky. He can be reached at email@example.com or follow him on Twitter @tadthomaslaw or @thomaslegaltech.
The information in this article is provide for informational purposes only and with the understanding that the author is not engaged in rendering legal, accounting, tax or other professional advice or services. The discussion is not intended as legal advice and cannot be relied on for any purpose without the services of a qualified professional.
*Practice SmartTM Features are a service of Michael Blum and Appeal Funding Partners, LLC. The Features are thoughts from a variety of sources on our practices, on being trial lawyers and things of importance to trial lawyers and their clients.
Michael Blum is a trial attorney and CEO of Appeal Funding Partners, LLC. He is a pioneer in the Litigation Funding industry with over 20 years’ experience providing risk mitigation services and non-recourse funding to attorneys and plaintiffs with money judgments on appeal. He is a member of AAJ and has served on the Board of Directors of the Consumer Attorneys of California and on the Board of the Marin Trial Lawyers Association. He speakers to trial-lawyer groups and has written for TLA magazines on the financial management of contingency-fee law firms. Contact him at 415-729-4214 or firstname.lastname@example.org.
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