We believe that running a social media search of clients, opponents, and witnesses is now part of the minimum level of due diligence expected of a competent litigator. Indeed, some courts have questioned whether lawyers who have not run Google searches on a defendant but are asserting that the person cannot be found have in fact made reasonable efforts to locate the defendant. In our view, it’s just a matter of time before malpractice claims begin to surface based on a failure to use information publicly available on the Internet.
Ethical minefields. Social media sites are ethical minefields that many lawyers are only now beginning to navigate. We are probably on safe ground when we access information that users have knowingly made available to the public; unsurprisingly, courts have accepted that there is no reasonable expectation of privacy in that kind of information. However, it is ethically problematic for lawyers to “friend” people just to get access to information in their social media profiles.
We have a duty to warn our own clients about the risks of social media. Clients can jeopardize privilege and, in some cases, have been held to have waived it by tweeting, blogging, or posting information about their cases. Some lawyers have made it part of their intake process to sit with each new client and conduct a social media audit, explaining the importance of maintaining the lawyer-client privilege and changing all passwords, advising against certain types of new online activity, and giving advice about whether any past activity can be safely deleted, or whether such deletions carry the risk of a spoliation allegation.
Perils of “friending” judges. Some jurisdictions permit lawyers to “friend” judges, provided lawyers otherwise observe the rules of professional conduct, such as those forbidding undignified communications and intemperate criticism of the judiciary. Other jurisdictions hold that a social networking relationship between a judge and a lawyer is impermissible because it conveys the impression that the lawyer has a special ability to influence the judge.
The role of social media during litigation. Social media are fundamentally tools for communication. In the world of Litigation 2.0, even the mundane task of service of process has social media dimensions. Information from social media can assist lawyers in tracking down individuals to be served. However, a New York court recently rejected service through social media, in part because of the risk that profiles can be faked. This is likely to be an area of significant development in the near future. The key issue will be satisfying a court that service through these electronic means will provide effective notice to the party being served.
Lawyers must remember that the rules of evidence still apply. It is important for counsel to consider carefully how social media evidence will be proved. The rules of evidence give little guidance on how such information should be tendered. Is it sufficient to tender such evidence through an individual who accessed the information? Is it necessary for the service provider to become involved? These issues are not yet settled, and litigators ignore them at their peril.
We have all heard the stories of plaintiffs in personal injury cases being confronted with their social media posts establishing that they are either making up or embellishing the degree of their injuries. Likewise in defamation disputes, counsel routinely issue litigation hold letters demanding that alleged defamers preserve social media evidence. These are obvious examples of how social media can play a role in lawsuits. But social media can have great impact in a wide range of disputes. Lawyers will not always know what they are looking for when they engage in the hunt for publicly available electronic evidence. Keeping an open mind can create significant opportunities to develop leverage in surprising ways.
Jurors online. Social media have been a significant problem in relation to juries. They are open to abuse in the form of improper contact between lawyers and juries. For example, in New York it is permissible to obtain public information about a juror or potential juror, but it is not permissible to communicate with the juror, including by the mere act of friending the individual. Judges routinely caution jurors about the importance of their not discussing the case with anybody, including on social media. But jurors routinely disobey the court’s directions, significantly increasing the risk of mistrials.
Confidentiality rules. Some social media platforms invite new users to grant the program access to their contacts lists to “friend” or otherwise connect with others. In jurisdictions where the identity of your clients is confidential information, you may unwittingly violate confidentiality rules if you permit a social networking application to mine and potentially publish your list of contacts, which could include clients, opponents, witnesses, and suppliers. Running afoul of confidentiality rules can also happen in more subtle ways.
Professional risks. Facebook allows users to “like” groups, companies, and other entities. LinkedIn allows users to recommend each other and to add areas of expertise to their profiles. Be careful: Doing so could get you into trouble unless you keep an eye on your local ethics rules. Your jurisdiction may forbid describing yourself as a specialist or an expert, publishing client testimonials, or making assertions that cannot be backed up by objective data.
The borderless nature of social media also leads to the risk that you could be accused of holding yourself out as qualified to practice in jurisdictions where you are not. Even if you are licensed in every jurisdiction to which a particular communication is connected, it may be unclear which jurisdiction’s rules apply.
The danger of creating a lawyer-client relationship with someone you never intended to make your client is obvious. So is the danger that the interests of this new “client” could conflict with those of a current client, especially when there is no quick and simple way to determine the true identity of a social media user.
Conclusion. Every development in communication, from telephones to fax machines to e-mail, has presented litigators with new challenges and new opportunities as we follow and guide the evolution of the law. In time, just as we did with phones, faxes, and e-mail, we will no doubt integrate social networking into our practices as we adapt to the world of Litigation 2.0 and as we prepare for the challenges posed by the next version.
ABA Section of Litigation
This article is an abridged and edited version of one that originally appeared on page 17 of Litigation, Spring 2013 (39:2).
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