Social media has fundamentally transformed how individuals interact with each other. Good or bad, it created a novel way to share photos, your relationship status, public statements, political views, where you have been, where you are going, and just about anything on your mind. However, the information that users readily post for the world to see can be of great interest, not only to family and friends, but also to opposing parties, opposing counsel, insurance adjusters, a judge, or a jury.
While we may wish that our clients are already fully aware of the potential dangers of social media, we should never assume that they are. Occasionally clients must retain counsel because they have already demonstrated a lack of awareness or judgment. Lawyers must advise and educate clients about how their postings may negatively impact the client’s goals or case. Standards of competent representation require this. See Va. R. of Prof’l. Conduct 1.1 cmt. 6.
Therefore, providing your client recommendations, both verbally and in writing, regarding social media during an initial consultation or upon signing an engagement agreement can potentially save both of you from performing damage control later. The best practice is to create a document memorializing your social media recommendations. Such a document is helpful for many reasons: it provides a checklist that you can follow during every initial consultation; it assists the client in understanding your advice and provides the client with a resource to review your advice at a later time; and it documents that you have, in fact, advised the client on this important issue.
In preparing your own form, the following checklist is useful across practice areas, but especially in litigation:
1. Advise your client not to delete anything from their existing websites or profiles. Doing so could raise questions about spoliation (or destruction) of evidence.
2. Advise your client that it may be best to deactivate (not delete) their social media accounts for the duration of the legal matter.
3. If your client elects not to deactivate their social media accounts, advise them to maximize all privacy settings. Doing so will restrict outsiders from seeing certain posts. Additionally, advise your client to monitor their privacy settings in case an update resets them. The client should be advised, however, that even with maximum privacy settings, opposing counsel may request production of all social media content.
4. Advise your client to minimize all social media activity. They should never mention anything that relates to their accident, injury, damages, claim, opposing party, or litigation, either directly or indirectly. Before posting anything, the client should always ask, “How will this appear to a judge or jury?”
5. Social media is not the place for your client to argue a case.
6. The brevity of information that comes with a social media post is rarely conducive to changing the minds of readers regarding an underlying issue. What it is conducive to is changing the minds of readers about how they view the writer.
7. Advise your client to know their “friends” or social media contacts. Clients should never accept a “friend” request from anyone that they do not know. This can be a challenge if your client has thousands of connections who could potentially reproduce anything negative that your client publishes.
8. If there are individuals closely involved with the legal matter, for example, a family member of your client, then verbal instructions may be provided to them. Keep in mind that any document that you provide to a non-client may be discoverable. If you chose to provide written guidance to a non-client, any such document should make clear that you do not represent that party.
Do not ignore the fact that your clients likely use multiple social media platforms. Try to have at least a working knowledge of the various platforms. And make it clear that your recommendations apply to all social media platforms. Finally, have the client identify all their social media and obtain their permission to have a staff member check each platform in the future to make sure that the client is abiding by the recommendations.
About the Author
Jordan Heath is an associate attorney at Heath, Overbey, Verser & Old, P.L.C. He is the First District Representative of the Virginia State Bar’s Young Lawyers Conference. He can be reached at Jheath@hovplc.com.
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