By: Mark Wilson, Esq.
Social media is a mixed blessing. Sure, it allows instantaneous communications with friends and family (especially over cat photos), but it also allows clients to make terrible decisions at the push of a button. Part of your initial meeting with a client should be a brief overview of why the client should stay away from Facebook and Twitter (and others).
Clients are big boys and girls; so why should you take on the Herculean task of telling them not to respond to that itch to comment?
1. ‘Cause Ya Gotta.
The North Carolina State Bar issued a formal ethics opinion in July declaring that a lawyer has an ethical duty to know about social media and, if necessary, to “advise the client of the legal ramifications of existing postings, future postings, and third party comments.” Once the suit commences, however, be careful. Advising the client to remove posts might violate the lawyer’s duty to preserve evidence. In any event, the ubiquity of social media means part of your duty to advise your client includes advising about social media.
2. ‘Cause They’re Going to Breach Their Settlement Agreement.
The case of Patrick Snay comes to mind. Snay won an $80,000 judgment against his former employer, but the terms of the settlement were confidential. His daughter posted on Facebook, “Mama and Papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT.” And guess who was back in court for breaching the confidentiality agreement — and lost all that vacation money?
3. ‘Cause It’s Evidence.
After posting on Facebook about being involved in a fatal accident in 2012, prosecutors used Facebook posts to charge Megan Merkel with vehicular manslaughter. Anything a client posts, or has posted, on Facebook is fair game for use in court, and nothing prevents an ostensibly “private” post from being forwarded to law enforcement, the court, or opposing counsel. And, of course, there’s good old James Elonis.
4. ‘Cause They’re Violating Their Restraining Order.
Yes, Virginia, sending a tweet to your ex can violate the terms of a restraining order. In addition to being considered “contact” in general, more and more tech-savvy judges are adding clauses to restraining orders to emphasize that the enjoined parties can’t contact each other through social media. Sending that tweet is the equivalent of showing up at your ex’s house.
5. ‘Cause It’s Bad Publicity.
A client venting about a case on social media can draw unnecessary attention to the case or issue (remember Amy’s Baking Company?). A case headed for easy settlement could quickly turn south as the party against whom the tweet or post is made gets livid and demands to go to trial. And if the client is especially high profile already, you’ll be on full P.R. alert in addition to being the lawyer (quick, someone get Olivia Pope on the phone!).