Social media has become a crucial part of the average American’s life. As a result, whether they want to or not, attorneys must, at the very least, appreciate the impact of social media on their clients. Failure to understand how social media can impact clients’ cases could lead to serious damage to a case which might result in a malpractice complaint. Further, wise attorneys will take advantage of social media to develop their practices through the networking and marketing opportunities provided by both their own websites and the various social media sites and applications. One way to appreciate how important social media has become in people’s day-to-day lives is to look at some 2018 statistics for popular sites:
Facebook – 2.3 billion users
LinkedIn – 590 million users
Pinterest – 250 million users
YouTube – 5 billion views per day
Instagram – 1 billion users
Google+ – Almost 550 million active users
Tumblr – 459 million blogs and 136 billion posts
Twitter – 335 million users
It is important to know that the number of people accessing social media sites via mobile technology (smartphones and tablets) is increasing to the point where the majority of people in the United States (79%) use mobile devices to access social media. This ease of access means people use social media on the go as a method to locate businesses they plan to hire. It also means people have a tendency to use social media to quickly share intimate details about their lives and activities. The former shows the value of social media as a marketing tool. The latter shows the amount of information people are sharing which can be harmful to their cases.
Attorneys who seek to begin using social media should keep in mind that the ethical risks involved with social media, both in terms of evidence collection and marketing, are very real. Therefore a proper understanding of appropriate and ethical behavior is extremely important. It is also important to understand that in certain areas of practice, it is now verging on malpractice to fail to communicate with clients about whether and how they use social media. Failing to warn the client to halt or at least limit social media use could result in that client posting materials that will harm his/her case. Failure to warn a client about evidence preservation could result in substantial sanctions for spoliation. In addition, it is quite conceivable that the opposing party will post harmful information to his case and failure on the part of the attorney to seek out possible harmful posts can result in loss of a substantially greater bargaining position, or even loss of a case that might have been won.
Specific Sites and Applications: Social media essentially includes sites and applications that enable people to share information, pictures, videos, and the like at a rapid rate, and, in return, allows other people to respond to the shared content. Currently, the most popular social media sites and applications in the United States include Facebook, Twitter, LinkedIn, Google+, Pinterest, YouTube and Instagram. Further, blogs are sometimes considered part of social media and so will be included in the discussion. The number of bloggers in the United States is set to reach 31.7 million users in 2020.
Different social media sites provide different tools. Further, some sites are better utilized by attorneys who tend to represent businesses, while others are better utilized by attorneys who represent individuals. It is important to target the correct site or mixture of sites for the best return on investment of time and/or money.
Marketing and Networking
It is not always easy to understand how social media can increase the potential for bringing in new clients. It is therefore important to think of social media as having uses for practice building.
Advertising: Social media includes straight forward advertising. Sites such as Facebook, YouTube, LinkedIn and others provide the opportunity to purchase small ads which appear on the top or side of the page. These ads are controlled through varying means, demographics, keywords, areas of interest, and so on. Generally, the cost of the ads is controlled through a bidding process known as pay-per-click. The site provides a suggested fee that its algorithm suggests will be successful. The purchaser identifies the amount he is willing to pay and competes against those who are seeking to advertise to the same individuals. Normally, the purchaser only pays when someone clicks on an ad.
Networking: Social media provides substantial opportunities for networking. It simply moves the networking from the bar association or educational program, to networking online. Providing information about interests, sharing day-to-day activities, responding to the posts of others - each of these behaviors is simply a way to connect with other people. Those people, in turn, may need an attorney or may need to refer someone else to an attorney just as in the offline world. Further, people tend to recommend individuals who they know, or feel they know, and social media allows the formation of that kind of relationship.
Content: Sharing useful content is a crucial part of social media for attorneys. Providing high quality content that informs users about the areas of law in which an attorney practices is an excellent way to bring attention to that attorney. The content can be as simple as commenting on a case on Facebook, sharing a useful link on Twitter, or providing a detailed analysis of a certain specific issue on a blog. This content shows potential clients that the attorney is knowledgeable in her area(s) of practice. Further, well-written content provides a substantial boost to search engine optimization and online reputation.
When you post on social media, you need to consider whether you are causing any ethical problems for yourself. Given the open nature of social media, a number of issues can arise when lawyers post. Two important issues to focus on include: Is social media advertising and are you forming an attorney/client relationship by answering questions?
When choosing what to write on social media, it is important to determine whether your post is advertising under whatever rule applies in your jurisdiction. If your account is completely private and you share only with friends and family, chances are very good that your posts would not be considered advertising. However, the question becomes cloudier when you open up your account to a larger group. If you are not certain whether your post is advertising, assume it is and act accordingly as far as your jurisdiction’s rules. Some jurisdictions define advertising very clearly. Others do not.
Twitter is a site that is problematic for states where any posting might be considered advertising. Pages appearing on networking sites that are used to promote the lawyer or law firm’s practice are subject to the lawyer advertising rules. This language means that many posts on Twitter would be considered advertising, simply because most people have their accounts entirely open and it is common for users to discuss a cross section of personal and work-related details of their lives. Most problematic, given Twitter’s 140 character limit, is that, in some states, the “Tweet" must include geographic information as well as “the name of at least 1 lawyer in the firm.” The attorney may use appropriate abbreviations for the geographic requirements which helps, to a degree. However, as soon as the poster puts both the full name of a lawyer and a geographic location, most of the allotted characters will be used up, substantially limiting the value of any Tweet. So, be certain to check your state’s rules before you Tweet. That said, many jurisdictions have not placed onerous requirements on lawyer’s abilities to use Twitter and a well-written tweet can be an excellent way to drive traffic to your website or share useful information.
In Opinion 2012-176, the State Bar of California provides an excellent analysis of how to determine whether a post is advertising. In California, a communication is considered to be, “any message or offer made by or on behalf of a member concerning the availability for professional employment of a member or a law firm directed to any former, present or prospective client.” Under the rules and articles of Illinois, “Any communication or solicitation shall not:
1) Contain any untrue statement; or
2) Contain any matter, or present or arrange any matter in a manner or format which is false, deceptive or which trends to confuse, deceive, or mislead the public; or
3) Omit to state any fact necessary to make the statements made, in the light of circumstances under which they are made, nor misleading to the public or
4) Fail to indicate clearly, expressly, or by context, that it is a communication or solicitation as the case may be; or
5) Be transmitted in any manner which involves intrusion, coercion, duress, compulsion, intimidation, threats or vexatious or harassing conduct.”
The State Bar of California, using its Rule and Article as a basis for analysis, next examines several hypothetical posts. They are:
1) “Case finally over. Unanimous verdict! Celebrating tonight.”
2) “Another great victory in court today! My client is delighted. Who wants to be next?”
3) “Won another personal injury case. Call me for a free consultation.”
4) “Just published an article on wage and hour breaks. Let me know if you would like a copy.”
In its analysis, the bar found posts 1 and 4 were not communications (i.e. advertising) but 2 and 3 did meet the requirements constituting a communication and therefore needed certain information that they lacked.
Post 1 was not considered a communication because it did not contain an offer concerning the availability for professional employment. Had the post used “Who wants to be next” as in hypothetical post 2, the posting would have become advertising based on the attorney stating that he is seeking additional clients. Post 4 was not advertising because, again, it did not state that he was seeking clients, rather it was simply providing useful information.
Post 2 is a communication because it makes it clear that the lawyer is available for employment. Since the post is advertising, it now has several problems under California’s rules. First, it does not contain a disclaimer. Second, it does not state it is an advertisement. Third, it offers a guarantee or prediction of winning. In order to make this particular post appropriate, a lawyer in California would need to add the required language. Such a post would become quite lengthy however, so a question would arise as to whether it would be worth it to share such information in the first place. It also would not be possible to share this particular post on Twitter in California. Post 3 is a communication/advertising for the same reason post 2 is. Asking for readers to call for a free consultation is clearly seeking employment from potential clients.
Remember, the rules in your jurisdiction(s) might be very different from California. However, the analysis in the bar opinion is one that you can apply to your posts. The first question is always going to be, is it advertising? The second question will be, if it is, does the post meet the ethical requirements. Be certain to give your posts the appropriate consideration.
Are Social Media Posts Considered Public Records?
Social media posts are considered public records if:
1) Posts are made on an official law firm account or on a private account that is being used to distribute information for that law firm to the public. Not included are private accounts of law firm employees that are not used as part of their job. If a private account is used to conduct law firm business, then it becomes public and is subject to the Local Records Act.
2) The content being posted is unique. Law firms do not need to preserve redundant content in all of its forms. For example, if the same event announcement is put out via both a press release and a social media post, then only one copy must be kept. Usually law firms will find it simpler to retain the “traditional” version, and this is acceptable. However, if the content of the two versions differs significantly, they should be considered unique records and both be retained. Printed by authority of the State of Illinois. July 2018 — 1 — ARD 155.1 1“Social Media” in this context refers to any of a number of platforms where an account holder can post written messages, images, audio, video or multimedia files with the intention of sharing that information with other individuals or external groups. Examples include Facebook, Twitter, Tumblr, Flickr, Google+, Instagram and many others.
The Retention Period for Social Media Posts
The retention period for social media varies. It depends on the post (record) itself, as there is no “social media” category. Records retention is based upon function and content of the record, not its format. This means that information content has potentially the same retention period whether it is shared using social media, email or a paper memo. While social media is a new means of communication, the function it serves is not new. Since social media is most often used by law firms to disseminate information to the public, it is generally considered to be the same category as press releases and other informational notifications, and is subject to the same retention requirements. If, however, social media is used to have two-way communication, it should be considered as correspondence and treated accordingly. Law firms are not required to retain all copies of duplicate postings. When information content is being distributed through multiple outlets, the record copy for retention should be retained in the media format that is most economical to maintain and manage. Agencies should consult their Application for Authority to Dispose of State/Local Records for appropriate retention periods.
Addressing Public Comments on Law Firm’s Account
Comments and posts put on a law firm’s account by members of the public or other outside entities are not by default considered to be records, unless those comments trigger some action by the law firm. Law firms are permitted to moderate their social media pages, but should be clear about criteria and publicly post the moderation policy on all accounts. Law firms are not required (for records management purposes) to maintain inappropriate comments or inflammatory language being posted by members of the public, but may wish to capture such posts to show evidence of their reasoning. An example could be a person being blocked from a page for repeated abuse who may then attempt to publicly accuse the law firm of undue censorship. Having a log of the reasons behind the banning can help protect the firm. Law firms are also allowed to turn comments off when appropriate, as they are under no requirement to allow them.
Capturing Content from Social Media Accounts
Most social media outlets do not by default allow account holders to download their activity logs (Twitter being a notable exception), so law firms must consider ahead of time how they will preserve their posts. This can be done by composing messages in local software and noting the time and date posted or by capturing screenshots of the post once it is on the page. There is also third party software that can capture social media content automatically for a law firm. The mechanism is less important than making sure that the critical record information is captured and maintained appropriately.
Private messages sent or received through the social media platform’s messaging service represent another challenge, as there is often no convenient mechanism to move them to a law firm’s own systems. Law firms are strongly discouraged from using social media messaging services for correspondence and instead should route such communications through agency-managed email, telephone or paper correspondence. This might mean responding to a comment or message from a member of the public via email (reiterating the original message content to ensure completeness) or requesting that they send their inquiry via email to ensure it is addressed properly. If law firms do communicate with outside parties via social media messaging, they must ensure that all communication is captured and transferred to an firm-controlled medium to ensure proper retention.
Is a Social Media Post Legal Advice?
The line for what is and what is not legal advice is a bit blurry. Given this, it is important that you stay on the right side of the line to make certain you are not inadvertently creating an attorney/client relationship. An attorney/client relationship is formed when a client has reason to believe that the attorney is handling his legal interests. The relationship can be formed expressly or it can be implied. The implied relationship is the one that can cause trouble online. The standard in determining whether an attorney/client relationship has been formed is based on what is the objectively reasonable belief on the part of the client. If you answer questions online, make certain there is an appropriate disclaimer, such as can be found on sites like Avvo and Quora. In addition, limit yourself to providing broad answers that are educational in nature as opposed to providing specific advice that directly answers the asker’s question. At this point, there have been no lawsuits involving attempts to claim a lawyer has formed an attorney/client relationship through an ask/answer site. Keep in mind, not only could you inadvertently form an attorney/client relationship, but if you provide legal advice in a state in which you are not licensed, you could be engaging in the unauthorized practice of law.
Recommendations/Testimonials: The rules around recommendations and testimonials vary greatly across the United States. As a result, it is difficult to provide specific guidelines. Given this, it is crucial that you refer to the state(s) in which you are licensed to make certain you follow the rules. In most states, it is perfectly acceptable to ask for testimonials. However, those testimonials must follow all relevant rules. When clients write recommendations, those recommendations must not create false expectations and they must be correct. If a client writes a recommendation that violates the rules, it is the attorney’s obligation to correct it. In some cases, for example LinkedIn, the attorney will be able to control whether an improper testimonial is posted. In other cases, for example Google+, Avvo and Facebook, the attorney is not able to approve the testimonial. In such cases the attorney must ask the client to remove the recommendation, or provide a correction in the comments.
Negative reviews are a serious problem on social media. A negative review can be very harmful to a law firm. That said, no matter how negative the review, it is crucial that lawyers respond appropriately if a past client attacks them online. Most importantly, attorneys may not share confidential information about the client in a response to a negative review.
Additional Ethical Issues: Aside from advertising, communication with potential clients, and inappropriate use of social media in discovery, there are other ways in which legal professionals have gotten themselves in trouble using social media.
Confidentiality and honesty: One potential area of trouble involves confidentiality. In one case, an attorney got herself in trouble by sharing confidential information about a case in such a way as to make it possible to identify her client. She also provided information that suggested that she knew her client had lied on the stand and did nothing about it. The attorney was accused of violating other rules involving honesty, fraud, and more. In the end, the attorney lost her job of 19 years and was suspended for 90 days by two different jurisdictions. Another serious consequence the attorney suffered is that when searching her name online; page after page of results show her disciplinary problems. Though she has since opened her own firm, it is difficult to find anything positive about her on the web in a Google search.
While it is perfectly acceptable to discuss one’s life, and even one’s professional activities, it is important to obey the ethical rules while doing so. Discussing a case on a blog while it is going on, outside of appropriate PR, is a bad idea. Failing to protect a client’s confidentiality is even worse. And, of course, failing to properly inform the court of inappropriate conduct by the client is a serious mistake. Judgment is a critical part of both practicing law and posting online.
Jokes and Satire: Jokes can be a serious problem online. It is impossible to see body language or hear the tone in a person’s voice. Something one person might find amusing might not be so funny to another. As a result, joking through social media can be problematic, especially on a politically charged topic.
Personal v. Private: Sometimes attorneys will develop both a private and public persona on the web, believing the two will remain separate. Unfortunately, this is simply not the case. It takes very little effort to perform research on the web and to connect the public and private behaviors of someone who has written something offensive or upsetting. It is unwise to believe that anyone can live two separate lives online. If one engages in controversial behavior, the result will be a magnifying glass of attention. In turn, it is virtually impossible for the individual to keep his private and public online lives from colliding.
Discovery of Social Media: Given the value of the information contained within social media accounts, it is no surprise that attorneys desire to obtain access to the information. It is not at all uncommon, for example, for an individual to say one thing in person to her attorney or a judge and to post completely contradictory information on Facebook. An individual might claim in court or interrogatories that she cannot leave her home due to emotional harm from an injury, but in turn post a video on Facebook showing her dancing at a party. In the past, it was necessary to hire a private investigator to prove someone was lying about his injury for a workers’ compensation claim; now the plaintiff frequently posts a picture of himself chopping wood or carrying a heavy couch, the exact evidence the defense attorney needs to prove her case.
Privacy Settings Are Important: Privacy settings control what an individual shares on social media sites. However, many users never change their privacy settings, or simply find the settings too complicated to alter. Many social media sites barely have any privacy settings at all. Twitter, for example, is either open, limited or private. 20 Facebook’s settings are extremely complicated and confusing. Blogs are meant to be open, and people frequently believe they are private when they are not. Since many people do not change their settings, attorneys should and do look through the social media sites in an ethical manner and view and preserve the information they can find. Keep in mind, if the attorney does the preservation, and authentication becomes an issue, the attorney could be forced to become a witness in her own case. It is best to have someone else in the firm do the preservation.
The Client’s Social Media: The first step when a new client walks through the door is to ask if he uses any social media. The next step, in some cases, is to inform the client that he must stop posting immediately. Unfortunately, the addiction and use of social media can be so great that the client will be unwilling to stop. As a result, the attorney should also advise her client that if he does post, he should not post anything that deals with the case. The attorney must be clear about what “deals with the case” means. Make certain to ask the client not only about his own accounts, but his comments on blogs and websites that might be relevant to the case. Social media and other online surprises can be very harmful. It is also important to remind the client that he may not delete any content from his account, even if it is potentially harmful to his case.
The first meeting with a client is also the time to speak with him about changing his privacy settings to make certain that his account is secure. Providing instructions on how to change privacy settings in written form or a video can be very helpful. It is also a good idea to have the client sign a document making it clear that he was told not to delete any content. This will protect the attorney from accusations of spoliation later on. In some cases it might be wise to ask for access to the account(s). Asking to friend the client is not enough, the password is necessary for a complete review of the client’s online conduct. You will have to make a decision as to whether connecting with the client and reviewing his account is wise. Remember, if you become aware of any content which shows the client is lying or will lie before the court, you will be in an ethical quandary. Also, if the client has a personal relationship with the opposing party, ask about whether he is connectted to the other side’s social media, for example as a friend on Facebook. In addition, ask the client if any potential witnesses are using social media. Find out if the client is connected to those witnesses and therefore has access to private areas of the accounts.
It is important that attorneys speak with not only with their clients, but other relevant individuals about their online conduct. In the end, what matters is proper communication with the client in order to protect both the client’s case and your ethical obligations.
Ask for Access to the Account: During the discovery process, unless there is a reason not to do so, ask for access to any and all social media accounts. In terms of Facebook, it is possible to download an entire account, so request that the opposing party do so and provide a copy. Be sure to ask for continuing access as well. The opposing party will likely refuse this request, and wisely so. Social media postings can provide a plethora of private information, some of which may be harmful to a case. It is possible to simply ask the opposing party to adjust privacy settings so the account is viewable, but again, it is likely this request will be refused. It is always best to ask though because during the discovery process the judge will certainly ask if the request was made.
Compel Discovery: This is where things get tricky. Different judges tend to have different responses to the request to compel discovery of a social media account. The best approach, and the one that has shown the most results, is to capture what is already viewable (through appropriate ethical means) and to show it to the judge. If the judge can see that the account has relevant and contradictory information, she is likely to provide access to the account. If the judge has concerns about the privacy of those other than the account holder, request that the court review the data first to help resolve the issue. Some judges do not feel that there are any privacy rights in social media content.
Case Law: There are a number of opinions related to discovery of social media when the account itself is not a part of the case, in other words when opposing counsel believes that she might find useful data in the account but the online behavior is not at the center of the dispute. At this point the trend in such cases is to provide access to social media accounts only when the opposing party can show that there is relevant and/or contradictory information contained therein. The conclusion to be drawn thus far about the majority of social media discovery decisions is that, while courts are willing to provide access to private sections of social media accounts, they are not willing to allow fishing expeditions simply based on the view that the accounts might have useful information. Some evidence showing that relevant information can be found in the account must be offered before discovery will be granted.
What Happens if the Owner of the Account Deletes the Data?
Most social media providers claim that when a user deletes information from his account, it is gone forever. Facebook, for example, explains that its deletion system works much like a recycling bin. In essence, when a user deletes data, that data is stored on Facebook’s server briefly until the system writes over it; this means, unfortunately, if someone is savvy and starts deleting harmful data, there is nothing that can be done to bring it back, once it is overwritten. Facebook does state, “[i]f a user cannot access content because he or she disables or deleted his or her account, Facebook will, to the extent possible, restore access to allow the user to collect and produce the account’s content. Facebook preserves user content only in response to a valid law enforcement request.” Of course, if there is nothing to find because it has been deleted and destroyed, than the site cannot restore the data. And outside of criminal cases, it must be the account’s owner who requests the data be restored.
Authentication: Authentication is another troubling issue when it comes to social media. Facebook states that the owner or someone familiar with the account can authenticate it. The issue however is that it is impossible to know whether the user deleted something in the account, leaving only helpful items. This is why it is extremely important to perform research early in the process, and to take screen shots of any evidence discovered immediately. Be certain to keep records as to how the evidence was preserved.
In terms of proving who owns the account, remember, it is very easy to create a fake social media account. Just because an account looks like it belongs to someone does not mean that it does. That is why it might be important to at least subpoena the account identifying information from the social media site, if there is any question as to ability to prove ownership of an account.
Responding to Social Media Requests
It is important to be prepared to respond appropriately to requests for social media content. All businesses (including law firms) should have a social media policy that controls who may (and may not) speak on behalf of the company. The policy should also consider addressing whether supervisors may be connected to employees on the more social sites (as opposed to professional sites liked LinkedIn,) and remind employees about the fact that policies online are the same as policies off line; specifically in relation to sexual harassment and other such issues. Employees should also be reminded not to discuss private information and/or litigation on their social media accounts. Employers should train employees on social media privacy settings to assist in security. As already explained, individuals should be warned not to post anything that can be harmful to their cases on social media.
Social media evidence needs to be preserved appropriately. For a business with a great deal of social media evidence to preserve, it is wise to involve a company that can help in the preservation process during litigation. An individual can simply print out the pages or download the account. If the account is large (and is not on Facebook where it can be downloaded) and it is likely the history of the account will enter into the lawsuit, it might be wise to arrange for preservation of the account through a third party, to avoid any accusations of spoliation later on.
In the end, it is crucial for clients, indeed for everyone, to remember that any content posted on a social media site, even back in 2004 when Facebook was first created and the client might have been in college, could come up later during litigation. Therefore everyone needs to be careful to think before they post. This does not mean that people should go back and clean up their accounts just because some day they might, by chance, be sued. But it does mean they might want to give some thought to their online reputations due to their past and current postings.
Judges and Juries
Judges: Many judges enjoy having an online presence as well. This has led to questions over whether judges should be friends with attorneys, and what happens if a judge is a friend with a defendant. In attempting to resolve the first issue, the Florida Supreme Court Judicial Ethics Advisory Committee determined that judges may not be friends on Facebook with attorneys who appear before them. In turn, a defendant sought to disqualify a judge based on his Facebook friendship with the prosecutor. The trial judge denied the request, but upon appeal the motion was granted. The court held that the Facebook friendship “conveys the impression that the lawyer is in a position to influence the judge.” Ohio came down on the other side, noting that it is acceptable for judges to friend lawyers who appear before them. However the judges must comport themselves properly, follow all ethical rules, and must be careful to disqualify themselves should the online friendship cause a bias.
In the end, the best advice for judges is that they be careful who they friend, and also, be aware of who they friend. Friending everyone is not a good idea for a judge, since it is easy enough, as shown above, for the judge to end up being friends with a defendant, and to be completely unaware of their online relationship. Judges who have many friends on social media sites might want to take a look at who those friends are, and determine whether they should remain friends. On the other hand, judges who prefer to have many friends online might find it wise to be certain they know who those friends are and at the least make both sides aware of the Facebook friendship prior to the trial beginning. If necessary, perhaps the judge could have a clerk make a quick check of his account to make certain that he is not friends with defendants who appear before him.
There is no doubt that social media can be a serious minefield in terms of day-to-day practice and ethical requirements. On the other hand, the substantial benefits available in terms of evidence, research, marketing, and networking cannot be overstated. With the number of people using social media increasing every day, social media will continue to impact the legal profession in every imaginable way, and perhaps some unimaginable ways too. As a result it is crucial for attorneys to embrace the technology and determine how they can use it both in their practice of law and in their efforts to grow their client base.
Jurors: While there are currently no conclusive decisions on the issue of researching jurors via social media, there is guidance on the subject. It remains impermissible to communicate with the jurors in any fashion. That means no friending (or having a third party friend) a juror in order to obtain access to the private sections of an account. However, the American Bar Association does not bar visiting the public portions of a site even if it makes the juror aware that an attorney looked at a profile. Such contact might include using LinkedIn to look at a juror’s profile. Unless set properly, LinkedIn will show the name of a person who looks at a profile, under certain circumstances.
Understanding how the public uses social media is important for attorneys so they can appreciate the types of evidence they might find online to help their cases, and so they can appropriately warn their clients about social media use. Knowing the benefits and risks of social media in terms of networking and marketing can help an attorney grow her firm without harming her hard-earned reputation through improper online activities. Being aware of how judges and juries use social media and how that use might affect a case is important, so attorneys can be prepared to respond accordingly.