What You Say on Facebook Could Be Used Against You
Clients and attorneys, think twice before you post
A few weeks ago Scott Kraeuter and I were speaking at the Nuts & Bolts of Family Law ICLE seminar in Savannah, GA. I really enjoy these, and the interactive audience discussions create a number of interesting article ideas. During this seminar, Facebook posts were one of the hot topics, but not for the normal reasons (reputation, advertising, etc.) that you would expect.
Etched in stone…on Facebook?
Here is the example that launched the Facebook discussion:
A new client comes into your office with pages of documents and materials: e-mails, text messages, cell phone bills, bank statements, credit card statements, Facebook pages, audio recordings, video recordings, photographs, cell phone GPS tracking data, and vehicle GPS tracking data. You question the source of this information.
We asked several questions about the example, but these two questions definitely generated the most conversation:
Is it acceptable to hire someone to “friend” the other party on Facebook with the intention of reporting activities and photos? Should the lawyer accept the information?
After the back and forth among members of the audience, the general consensus answer was “no” to both if the only intention was evidence collection, although there was definitely some equivocation. I agree with the answers as well as the need to tread very gently here. When you place information in the public domain like on Facebook, you are making it available for anyone to view. Cutting off someone’s specific access doesn’t protect you. Removing the information doesn’t protect you, and may get you into hot water for spoliation. If you are an attorney and you advise your client to alter or remove the information already posted, you could be in for double trouble with the courts and the State Bar.
Spoliation of evidence
Have you ever advised a client to remove a comment or image from a social media site? If no one saw it, what’s the harm in pulling it before someone does, right? If the client has been put on notice of an impending action, you have an obligation to preserve anything that may be construed as evidence. This covers all potentially relevant documentation, whether print or electronic, including online posts. Failure to preserve this information is considered spoliation of evidence. What’s worse, the jury may receive a charge that the destruction/alteration/spoliation is proof of the matter asserted by the opposing party.
But you didn’t say that in your blog…
This scenario spans a number of legal practice areas, but also applies to us as attorneys. Let’s say I write a blog article, describe a hypothetical situation, and then document my opinions based on those hypothetical facts. Later, a similar real-world situation coincidentally arises and I argue against my own earlier expressed blog opinions. This may cause a conflict between my client and me, and my earlier opinions could be used in an attempt to undermine my client’s position in the pending case. Whether it would be admissible at trial is another issue, but this scenario could still make things more complicated and expensive for both of us. Busted for a blog!
How can we avoid these situations? Use general examples and hypotheticals to teach and inform readers in your articles and blogs. Document the fact that you are not providing legal advice. Make sure your clients keep their hands off their keyboards. Think twice before you post that wild party picture on Facebook, and advise your clients to avoid such potentially irresponsible behavior as well. If a client just cannot resist posting to social media sites, suggest reviewing the client’s draft post ahead of time. Finally, never advise your clients to engage in evidence gathering activities that could be even remotely perceived as dishonest or deceitful. This advice could backfire on you as counsel.