Social Media – The Litigation Context

By Cynthia Sharp, The Sharper Lawyer

Litigators seeking to develop an edge through the use of social media have volumes of “how to” information available at their fingertips. The following introduces several key issues and suggests a few strategies that can be immediately implemented.

Screen Your Clients – Google your client’s name and as a condition of representation, require access to social media accounts. Better for you to uncover undesirable information before your adversary is given the opportunity.

The unfortunate attorney representing the plaintiff in Cajamarca v. Regal Entertainment Group  learned this lesson the hard way. His client claimed that she was “bedridden” and in a “vegetative state” as the result of the incident giving rise to the lawsuit; however, her Facebook page revealed “an extraordinarily active travel and social life” and contained “sexual banter with friends”. In admonishing plaintiff’s lawyer, District Judge Cogan stated ”[he} should be roundly embarrassed. At the very least, he did an extraordinarily poor job of client intake in not learning highly material information about his client . . . “   OUCH! Don’t let that happen to you.

Investigate opposing parties,  potential witnesses, judges, and expert witnesses –  The internet is an invaluable tool for mining information; however, the use of social networking sites by attorneys and investigators as an investigative tool is governed by the rules of professional conduct.

While attorneys may ethically access and review public portions of a social networking site, an attorney may not ethically friend an unrepresented party or witness (personally or through an agent) by means of subterfuge. A Cuyahoga County, Ohio assistant prosecutor lost his job in June of 2013 after posing on Facebook as a former girlfriend of a murder defendant in an attempt to persuade female alibi witnesses to change their story.

Warn your clients NOT to discuss their case online – as the information will not be privileged and is probably discoverable. A clause in the retainer agreement should address this issue. On the other hand, counsel clients NOT to permanently delete previously posted social media data (even if it hurts the case). Many attorneys throughout the country have been sanctioned for spoliation of social media evidence.

Gather information about the jury – Be prepared to conduct online research of juror’s backgrounds during the voir dire process. Trial attorneys throughout the country have reported to me that some judges permit this research while others don’t. In an ideal world, consistency would prevail. The New Jersey Appellate Division has ruled that attorneys are permitted to research the background of potential jurors on the internet.

An opinion issued by The New York County Lawyers Association Committee on Professional Ethics considered the question as to whether an attorney is permitted to utilize social media sites to conduct ongoing research on jurors after the jury is selected and the trial has begun. The Committee found that an attorney who visits publicly available social networking sites of a juror has not breached the New York Rules of Professional Conduct pertaining to impermissible communication with a juror. However, the Committee went on to state:  “… sending a ‘friend request,’ attempting to connect via LinkedIn.com, signing up for an RSS feed for a juror’s blog or ‘following’ a juror’s Twitter account… would be impermissible communication with a juror.”

Use social media to obtain warp-speed results – Herb Rubenstein, author of Leadership for Lawyers, related the following success story: A law firm, hired on a contingent basis to collect the sum of $19,334, posted this question on its twitter feed: “Does anybody know why “X” (the debtor company) is paying its bills so slowly?” The debtor contacted the law firm within 30 minutes of the posting to make immediate arrangements for payment. The law firm’s fee of $6,438 represented a handsome return for 15 seconds of work.

Judges: Exercise caution with respect to online friendships – Whether it is ethical to list an attorney as a “Facebook Friend” of a judge varies by jurisdiction. Recently released ABA Formal Op. 462 allows such “friendships” so long as the judge’s participation comports with the standards established by the ABA Model Code of Judicial Conduct. The opinion recognizes that social media can be beneficial to judges to prevent them from being regarded as isolated or out of touch with the real world.

As a practical matter, attorneys may want to refrain from friending judges before whom they may appear in order to avoid the possibility of a request for recusal by an adversary

Monitor jurors’ social media communications during trial – While Model Jury Instructions in most jurisdictions prohibit juror communication on social media sites, some jurors ignore the restrictions and have triggered new trials and mistrials. Attorneys who monitor juror’s publicly available social media communications during trial should keep in mind the obligation to disclose juror misconduct of which he or she becomes aware.

Stay tuned for inevitable new developments – All aspects of the social media/litigation world are evolving rapidly.  The careful litigator will pay attention not only to the abundant new opportunities but also to the accompanying risks and potential ethical exposure.

__________________________________________________________________________________

Cynthia Sharp (cindy@thesharperlawyer.com) is Director of Attorney Development at The Sharper Lawyer located in Philadelphia, Pennsylvania.  As a professional CLE instructor and attorney business coach, Cindy has established a national presence as an author and speaker on topics of ethics in the context of practice management, social media and technology – lecturing extensively to law firms, bar associations and other legal organizations.

Ms. Sharp’s Indianapolis and Merrillville seminar, Strategies for Taking Charge of Your Law Practice, has been completed however, you can still view the Video Replay or the Online/On Demand Seminar by Clicking Here.

 

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

Leave a Reply