For some attorneys, the advent of social media has been a boon for their practice. It’s made everything—marketing, practicing law, networking—easier than ever before. Meanwhile, other attorneys I’ve spoken with are far too terrified and confused to even consider mixing Facebook, Twitter, and other social media tools with their legal practice.
And not without good reason. After all, there are certainly a host of potential ethical, legal, and professional pitfalls that present themselves when you or your clients log in to any of those services. Nonetheless, these issues certainly aren’t going to go away if you decide to stick your head in the sand. Besides, even if you aren’t using social media, your clients probably are.
The bright side is that the issues that arise from social media use are not new. In fact, these are the same issues you’ve always confronted in your practice: attorney-client confidentiality, discovery, the attorney’s duty of candor, legal advertising, and so forth. These are already familiar issues. The main thing to remember when using social media on your site is that the same rules that apply offline will also apply on the Internet.
Most attorneys who have been sanctioned for misuse of social media were sanctioned for behavior that would have been a clear ethical violation had it occurred offline. For example, during a recent meeting with a few of my colleagues, I was asked as a hypothetical whether an attorney could ethically direct his client to delete pictures from his or her Facebook page if those pictures in any way related to ongoing litigation. I think that we could all agree that it would be unethical to advise a client to destroy physical pictures relating to an ongoing case. But what if deleting that picture was as easy as clicking a button?
As it turns out, the issue has already presented itself in a number of cases. A recent case before the United States District Court for the District of New Jersey, Katiroll Company, Inc. v. Kati Roll and Platters, Inc. et al., involved a trademark infringement action between two restaurants. During the course of the litigation, the defendant deleted a Facebook profile picture that showed the allegedly infringing trade dress of the defendant’s restaurant. The Court found that the defendant had a duty to preserve that picture and thereby issued sanctions against the defendant for spoiling evidence.
Another recent case in Virginia, Lester v. Allied Concrete Co., involved a wrongful death lawsuit against Allied Concrete when the Plaintiff’s wife died in a car crash involving one of Allied’s vehicles. During the course of the litigation, Plaintiff’s attorney repeatedly told his client to “clean up” his Facebook page so they could avoid “blow ups of that stuff at trial.” The “stuff” the attorney was referring to included a picture of the Plaintiff, after his wife’s death, holding a beer and wearing a t-shirt that read “I [heart] hot moms.” Not only did the Plaintiff decide to “clean up” his page, he decided to deactivate it completely. Subsequently, Plaintiff responded to a relevant discovery request by stating that he did not have a Facebook page as of the date of the discovery response. Defendant brought in a Facebook expert who used IP logs to demonstrate that the page had existed and that pictures had been deleted from the account. As a result, the Court issued harsh sanctions against both the Plaintiff and his attorney. The Plaintiff’s $10.6 million dollar award was cut in half and sanctions in the amount of $180,000 and $542,000 were issued against the Plaintiff and his attorney respectively.
Most attorneys would agree that in both of these cases, the behavior at issue would have constituted a clear ethical violation if it involved actual physical evidence. This is true for every case that I’ve seen in which an attorney has been sanctioned or reprimanded for activity that occurred on social media.
So what’s the moral of the story? Don’t do anything on social media that you wouldn’t do offline.
Let us know if you have any tips for using social media in our comments section below.