Summati
THE
n Weekly USPS Publication Number 16300
T h i s C o m mu n i t y N ew s p a p e r is a publication of Escambia / Santa Rosa Bar Association
Section A, Page 1
Vol. 16, No. 38
Visit The Summation Weekly Online: www.summationweekly.com
September 28, 2016
1 Section, 12 Pages
Don’t Even Think About It! The Social Media Shenanigans that Can Sink You by Ari Bures
Thanks to social media (Facebook, Twitter, Instagram) it looks like the First Amendment is alive and well, and censorship is dead and gone! We are encouraged to post what we are thinking as we are thinking it, share photographs and videos of what we are up to, share things that interest us, keep in touch with family and friends, and easily send out invites to our shindigs all with absolutely no filter! I have seen everything that could possibly inspire laughter, cause the shedding of tears, invoke anger, and stoke the fires of controversy. I have seen it in it all in its most raucous, rawest, and ugliest forms, and conversely in its most stunning and inspirational forms. But thats another story. Those of us in the legal profession have a responsibility to stay informed of the rules regarding how we interact with social media. Some of the most seemingly insignificant activity on our own or our clients’ social media profiles can have insurmountable consequences. For instance: • A Virginia lawyer representing a widowed young man in a wrongful death suit happened upon some Facebook pictures depicting his client wearing a provocative T-shirt and partying at a club with some young women. The lawyer
told him to remove the pictures as they prepared for trial, but opposing counsel had already seen the pictures. This was considered spoliation of evidence, which resulted a five year suspension for the attorney and a judgment against the attorney and his client for fees payable to opposing counsel. Advising a client to remove anything from their social media or even change their settings is the same as advising them to hide or destroy evidence. • An Illinois attorney updated her blog and in turn provided some telltale facts
about a high profile case she was working on. Even though she maintained client anonymity, the blog post was so detailed that anyone with access to a TV, internet, or printed media could tell who she was talking about. If you blog about a police chase involving a white Bronco, ill-fitting gloves, and a prominent divorcee and her boyfriend found dead; or a missing child gone unreported for a month and a car trunk that smells of death; or a missing pregnant woman whose husband takes a break from searching for her to call his girlfriend, anyone not
Social Media Don’ts Don’t ask a client to remove anything from his/her social media, it’s the same as advising them to destroy evidence. Don’t share information about a case, especially a high-profile case, since chances are it will be recognized regardless of whether or not you make your client’s name anonymous. Don’t promote your practice or drive clients away from an opposing counsel by “astrosurfing,” or posting false reviews to encourage client traffic to your own practice. Don’t jeopardize your professionalism by using social media as a platform to make disparaging remarks about other members of the legal community, or your client.
living in a monastery for the last 25 years could probably identify those high-profile cases. • Another lawyer in Illinois found herself in hot water for responding to a negative online review. The client lost and blamed his attorney for the judgment against him. The attorney responded by publicly suggesting he rethink his own actions that got him there in the first place. Even if an online review is wrong, arguing with the reviewer may not only result in consequences from your state’s bar, but it may also make you appear thin-skinned, immature, and untrustworthy. • A New York attorney created a fake profile (commonly referred to as “sock puppetry”) on an online dating site of an attorney he knew in law school in an effort to make a fool out of her. The metadata led right back to him and he was suspended. Metadata is the digital equivalent of fingerprint evidence. There is no such thing as online anonymity anymore. Suppose you could use a library or internet café computer to cover your tracks? They have sign-in sheets and security cameras. So, unless you want to seem even more conspicuous by donning a hoodie and sunglasses like the Unabomber, just drop the idea of trying to be digitally sneaky. Yelp has even filed suit against an attorney for posting false reviews in order to encourage client traffic. • Another metadata trap: In connection with the Danziger Bridge trial, members of the Justice Department in Louisiana posted some harsh words about the defendants and their counsel, causing the verdict to be thrown out. • “Astroturfing” is the act of creating false online reviews with the intent on driving client traffic either to your own practice or away from competitors’ or opposing counsels’. This is also a
metadata trap. • A Florida attorney made the colossal gaffe of posting a picture of her client’s, who she was defending against a charge of murder, racy underwear on social media. This resulted in a mistrial because it looked like she was unconcerned about her client’s best interests. She was also fired by her client. • A lawyer in Kansas made some taunting and profane remarks on Twitter about a former attorney general who was facing disciplinary proceedings. This adversely affected said disciplinary proceedings, and the attorney who made the disparaging remarks was fired from her law firm. Social media does not have to be regarded as one big danger zone for legal professionals. It can also be a handy tool in researching jurors online. A juror’s social media pictures may look innocent enough but if you take a minute to view a juror’s regular social media behavior, you may find that you do not want them anywhere near your case. Social media is also useful in researching opposing parties during the discovery process. Be careful of how you approach their social media page. Facebook does not have a feature that tells you who has viewed your profile. LinkedIn, on the other hand, does but it is limited in scope as to let you know someone has viewed your profile but not who it is. As for our own social media activity, when it comes to talking shop, we can post about our victories as long as the post does not resemble an advertisement. It is acceptable to say “The trial is finally over, now it’s time to celebrate!” It becomes advertising when you cap it off with “Who wants to be my next winning client?” And that is the Bottom Line.