The Risks of Social Media in Litigation
October 10, 2018
It has become apparent that lawyers must keep informed of changes in the law, including the benefits and risks associated with relevant technology. And, relevant technology is not limited to electronic dockets (i.e., NYSCEF, and ECF) and preserving text messages a client sends about his/her representation. Rather, relevant technology includes today’s world of social media including Facebook, Twitter, Instagram, and Snap Chat to name a few. Today’s blog is intended to highlight a few of the risks associated with social media.
1. Know What Your Client is Posting on Social Media
In a 2014 case out of the Florida Court of Appeals, the daughter of the winning party posted a comment on her Facebook page commenting about the outcome of the lawsuit and the European vacation paid for as a result. Unfortunately, the post violated the confidentiality provisions of the parties’ settlement and torpedoed the settlement. Ouch! Chances are, the attorneys had no idea what the daughter was up to but this case is a good reminder to know what your client is posting on social media.
2. Don’t Spoliate, or Condone the Spoliation of Evidence
Social media posts, like any other type of “evidence” may be relevant to the lawsuit in which you are involved. And so, like any other type of evidence, counsel may not alter or destroy relevant social media posts nor can we direct or assist others in doing so. But, what happens when you tell your client to “clean up” his Facebook page?
In one particularly egregious example of “deceptive and obstructionist conduct,” a lawyer directed his client to clean up his Facebook page, and then ultimately deactivated the client’s account before signing a discovery response the client did not have a Facebook account. The Court levied a collective fine of $722,000 in sanctions against the lawyer and the client, and referred the attorney to the Virginia State Bar. Other less egregious “housekeeping efforts” can also result in spoliation motions and adverse inferences at trial (see e.g. Gatto v. United Airlines Inc., United States District Court, District of N.J., Civil Action No.: 10-cv-1090-ES-SCM [personal injury plaintiff intentionally deactivated Facebook account during discovery, unbeknownst to his lawyer]). In addition to the spoliation dangers presented by social media, Gatto dovetails nicely with Point I, supra, and serves as an important reminder to know both what your client is posting, and what your client may be deleting.
3. If You Resort to Social Media to Research a Prospective or Sitting Juror, Do it Ethically
Various ethics opinions (see e.g., the NY County Lawyer Association Opinion 743 (2011) the New York City Bar Association Commission on Professional Ethics Formal Opinion 2012-2 (2012) say it is okay to research perspective and sitting jurors through social media. However, make sure you do not communicate with the individual in the process so you don’t run afoul of the “no contact” rule. See, e.g., Rule 3.5 of the New York Rules of Professional Conduct. It is therefore critically important before you, a colleague or agent conduct any social media research about a juror, that you understand how the particular network operates. For example, certain jurisdictions find the automatic system-generated notice, “Katy Cole has viewed your LinkedIn profile,” to be a “communication” and therefore an improper communication with a prospective juror (or witness, or party). See previous blog post, “Ethical Information Gathering When Using Social Media.”
4. Understand the Impact of What You Share
Finally, it is important to remember that the essence of the legal profession is confidentiality and discretion. And yet, there are many public examples of lawyers demonstrating, on social media, a lack of judgment when, for example, they share tweets or posts about clients or trial strategies. Such behavior is really a recipe for disaster as a lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized to carry out the representation. Therefore, a comment about even a generic/unidentified client or a case runs the risk of violating one’s duty of confidentiality to the client. See, e.g., “Blogging Assistant PD Gets 60-Day Suspension for Posts on Little-Disguised Clients,” American Bar Association, May 26, 2010.
The take-away is simple: Rather than run into an ethics problem as a result of a social media post, tweet, hashtag, etc., think before you post.
Have questions? Please contact me at firstname.lastname@example.org.