Last Friday I spoke to the Idaho Trial Lawyer’s Association at their annual convention. On the program was Assistant Chief deputy Attorney General Brian Kane who talked about social media and how it impacts lawyers. I thought I had a good grasp of the implications, but after listening to Brian decided I needed to talk to my partners about the subject, especially as part of our new client intake process.
Brian said that in 2012 some 800 million people are active Facebook users, up from 200 million in 2011. There are 100 million Twitter users in the United States and 50 million of those log in at least once a day. There are more than 150 Google LinkedIn Users as well. The important point he made about this was that these are not just kids. His chart on the average age of these users were in the 32 years of age to 38 years old which means we are talking about many of our jurors and a whole lot of our clients.
The risks of using these social media devices by both lawyers and clients is significant. For lawyers, Brian pointed out, when we use these devices we can lose attorney client privilege by the client simply forwarding the communication to a non party. We can unintentionally create an attorney client relationship which could lead to legal malpractice suits especially regarding issues like the statute of limitations. Ethical rules apply to our communications. We can violate the ethical obligation of confidential communication. Then there was the lawyer who obtained a case continuance “to attend her grandmother’s funeral” and posted photos about her vacation and partying during the stay, but was caught by a judge who saw it.
For both attorney and client the most important fact is that there is no assurance of privacy and one should assume everything is public. For clients, that means what they post should be assumed to be available in discovery or by the insurance company or their lawyers searching. There are numerous examples of how this can be a disaster. The plaintiff who claimed his scaring was so traumatic to him he couldn’t wear shorts anymore, but who posted numerous shots of him in shorts. Or the motorcycle plaintiff who said he couldn’t ride bikes anymore who posted the photo of his brand new Harley with other shots of him riding.
Brian pointed out that we can’t just have our clients delete it because that runs the risk of ethical violations plus spoliation of evidence violations. In case the plaintiff did delete the material and the court barred her from introducing any evidence of mental anguish because the material may have included social participation or other relevant facts.
Of course, there were the other cases involving jurors who compromised verdicts by their use of social media during trials including one woman who texted her hairdresser about the ongoing deliberations of the jury in the jury room. There are even cases of judges whose social media use involved judicial ethics violations and sanctions.
At the same time these devices represent a great resource for us in investigating jurors, witnesses and others. Clearly we must investigate our own clients material and make sure they fully understand the significance of what they post. There is a potential for jurors or even judges seeing what has been posted. Bear in mind that the majority of users do not protect their sites from review with privacy passwords or other means.
When we talk about blogs and websites we have exactly the same problems as outlined above. Assume that everyone reads your profiles and posting. That means judges, jurors, lawyers, clients and the entire public. Do not mindlessly unload words without this awareness at the risk of substantial harmful consequences.
I thank Brian for this informative talk. It may well be that all of you were already aware of this, but for me what was an eye opener was the significance of what is posted or sent as available to virtually anyone. Be forewarned.