Talking to Clients About Social Media Posts
The American Bar Association has issued 12 ethical rules for lawyers, dealing with social media. These include:
- You should tell your clients about the privacy settings on various social media platforms and how to make them as private as possible.
- You cannot tell clients to destroy existing relevant posts, just like you can’t tell a client to destroy any other existing relevant evidence.
- Relatedly, you must inform the client of the potential negative consequences (if they do destroy existing evidence on social media...)
- You cannot contact or communicate with your clients through social media.
- You cannot contact potential witnesses on social media through pretext.
Failing to follow these rules can leave you, and your clients, at risk. And if you tell your clients to “clean up” their social media without providing specific directions, in writing, “spoliation sanctions” won’t be such a fun phrase to say anymore......
This type of information above, just shows that attorneys must be diligent about social media, and preferably, should ensure that clients understand that posting on social media (which of course, include Facebook) can have some pretty bad fallout, especially if there has to be an investigation into posts that had key evidentiary value, and then were found to have been removed?
Most clients do not understand the required steps required in order to introduce evidence of texting , for example; how judges want such data to be arranged, shown or displayed in court; emails have a slightly easier time; posts that are regularly taken down by the website or host can prove to be more expensive when attempting to show time frames. Most of online data these days is subject to current discovery rules and because new platforms can often change quickly, the cost to resurrect such data can possibly be both high in cost and time.