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TORT TRIAL AND INSURANCE PRACTICE: Legal Malpractice at a Crossroads

By Peter J. Biging and Jason Ederer

For lawyers, social media’s ubiquity and the explosive expansion of electronically stored information (ESI) provide both enormous opportunity and new risks to navigate.

The growing electronic information monster. ESI has been defined as e-mails, attachments, voice mail, instant messaging, and other electronic communications, and more recently it has come to encompass posts on social media. ESI provides attorneys with the who, what, where, when, and why of a particular case more exactly than at any time during the history of litigation.

Relevant rules and regulations. Federal Rule of Civil Procedure 34(a)(1)(A) states that “[a] party may serve on any other party a request within the scope of Rule 26(b) . . . [seeking] any designated documents or electronically stored information . . . stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form.” Rule 37(e) states that to the extent “electronically stored information that should have been preserved . . . is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery,” the court may “(A) presume that the lost information was unfavorable to the party; (B) instruct the jury that it may or must presume the information was unfavorable to the party; or (C) dismiss the action or enter a default judgment.”

While there are often no specific state statutes, a number of courts have published guidelines concerning ESI maintenance and production, including: (1) the identification of ESI that is or is not reasonably accessible without undue burden or cost; (2) the methods of storing and retrieving ESI that is not reasonably accessible; (3) the need for certified forensic specialists; (4) relevant ESI custodians; (5) search methodologies for retrieving or reviewing ESI; and (6) the discoverability of deleted data.

As a basic standard of practice, when litigation is reasonably foreseeable, the attorneys on both sides should immediately encourage their clients to: (1) identify relevant categories of potentially discoverable ESI to be segregated and preserved; (2) identify a relevant time frame for the hold and initial search of documents; (3) identify the types and locations of ESI; (4) identify applications where relevant information may exist; (5) identify all relevant ESI custodians; (6) identify search methodologies or protocols for retrieving/reviewing ESI; and (7) formulate keyword searches and agreements on search terms, archival, and/or legacy ESI.

Minimum required competency for attorneys. ABA Model Rule of Professional Conduct 1.1 provides: “A lawyer shall provide competent representation to a client.” In August 2012, Comment 8 was amended to provide: “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology. . . .” Since then, 26 state bars have adopted some version of the rule, regulating attorney conduct and competency with respect to ESI.

Risks presented by social media in failing to preserve or pursue ESI. This could be fertile ground for malpractice litigation in the future whenever a client fails to achieve the desired result in litigation and ESI is involved. Specific and easily identifiable risks include a lawyer’s failure to: (1) take the necessary steps to put a litigation hold in place on ESI in a timely fashion; (2) obtain text messages; (3) obtain inculpatory or exculpatory posts and/or pictures on a Facebook page, Twitter feed, and/or Instagram; (4) preserve the confidentiality of certain documents of his or her client or adversary; or (5) actively and aggressively pursue ESI from adversaries and nonparties.

The social media monster. Aside from practice concerns, social media presents a number of ethical and other concerns. LinkedIn or other professional social networking platforms invite lawyers to identify “specialties” or expertise online. Without any intent on the lawyer’s part, one may be mislabeled by others as having expertise in an area one doesn’t specialize in. Knowing failure to alter your LinkedIn page to delete these misrepresentative statements of your areas of expertise could result in problems down the line.

You should not send Facebook friend requests or LinkedIn invitations to represented parties. It is also clear that you need to be careful in viewing web pages that may automatically send inquiries or connection requests without any specific direction or instruction by you. However, you can freely view publicly accessible social media.

Legal blogging. Attorney blogs typically contain short news articles and informational essays on topics relating to the attorney’s area of practice expertise.

Recognizing that attorney blogging may or may not constitute attorney advertising, states have begun to promulgate ethical opinions on the same. Additionally, regardless of the specific content on the blog, the ABA has stated that a blog on an attorney’s professional website will likely be found to be advertising even if it contains information and materials of general public interest.

These legal blog posts, and their Facebook posts and Tweets, could leave attorneys and law firms on the hook for a potential malpractice claim based on the contention that an attorney or a firm provided legal advice or representation in the course of a communication.

Defamation. Due to the unique situation that blogs often present to a court, the line of demarcation distinguishing defamatory conduct from conduct that is not can often be hard to decipher. Courts have examined two defenses that have factored prominently in the defense of these types of cases where lawyer reports on court proceedings and court rules are involved: statements that are “nonactionable opinion” and statements that are protected by the “fair reporting privilege.” Courts have responded with a substantial number of pro-blogging rulings in recent years. Where these rules apply, as long as a blog entry is “substantially accurate,” a civil action cannot be maintained against a lawyer for the publication of a fair and true report of any judicial proceeding.

Legal malpractice risk. Once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a “litigation hold” to ensure the preservation of relevant documents. While care must be taken to avoid destroying evidence, the good news is that sanctions for failing to preserve social media materials as part of an ESI production are not necessarily going to be automatic. According to the ruling in Pegasus Aviation I, Inc. v. Varig Logistica S.A. (46 N.E.3d 601, 602 (N.Y. 2015)), a party seeking sanctions for spoliation of evidence must generally show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a “culpable state of mind,” and “that the destroyed evidence was relevant to the party’s claim or defense such that the trier of fact could find that the evidence would support that claim or defense.” n


This article is an abridged and edited version of one that originally appeared on page 38 of The Brief, Spring 2017 (46:3).

For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.


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Peter J. Biging and Jason Ederer

Peter J. Biging is an equity partner and Jason Ederer is a senior associate in Goldberg Segalla LLP in New York City.