The following is a guest blog post by Renee Galente Stackhouse. Renee is the founder and trial lawyer at Stackhouse, APC, where she focuses on plaintiff’s personal injury and military defense in San Diego. She is the immediate past President of California Women Lawyers, President of the CWL Foundation, Chair of the CLA SSF Section, and sits on the Board of the San Diego County Bar Association.
You would be surprised how easy it is to find public information on the Internet. Or maybe you wouldn’t, given the many stories of jobs lost and cases jeopardized by social media posts. Using Google and social media searches on parties and witnesses can be very helpful to your case, but make sure you don’t overstep.
Do use any public searches. Anything a lawyer can access freely on the internet that does NOT require “friending,” “linking,” or “connecting” is fair game. If you can “Google” it, you’re good.
Don’t friend or connect with represented parties. When you can’t get information because of privacy settings, you may think of sending a “Friend Request” or connecting with the other party to see their posts. But just as you can’t talk directly to represented parties, you can’t connect with them online. See California Rules of Professional Conduct 4.1 and 4.2; SDCBA Legal Ethics Opinion 2011-2. This includes high-ranking employees of a party.
Do be honest when connecting with unrepresented parties. You can connect with unrepresented parties online if you’re honest about who you are—you can’t use false pretenses or accounts that don’t include your identity. Similarly, you can’t go through someone else to communicate with them. As long as you’re using your real name and profile, you should be ok. It doesn’t hurt to let them know that if they do have a lawyer, they should promptly turn over the communication from you to that lawyer for a response. California Rules of Professional Conduct 4.1 and 4.3; See New York City Bar Formal Opinion 2010-02.
Do be honest when connecting with witnesses. As with unrepresented parties, you can connect with witnesses online as long as you use your real name and profile and don’t use false pretenses of any kind. Always disclose who you are and why you’re connecting. California Rules of Professional Conduct 4.1; See Oregon State Bar Formal Opinion No. 2013-189. For example, I’ll send a Facebook message to a witness saying
My name is Renee Stackhouse. I apologize for reaching out on social media, but have been unable to reach you any other way. I am an attorney in San Diego and I represent X. I am looking for information about Y. I understand you may know about what happened and I would love to hear from you. Both X and I would appreciate if you could get back to me via (contact information) to talk about this case. Thank you for your consideration.
Do caution your clients that they will be searched online. Given that the opposing side will be doing this too, caution your clients that their social media and other online activity may be searched even if they are using privacy settings. You may want to “friend” your clients to monitor them, but you may want to use a professional account separate from your personal account to help keep your private life private. Consider including a social media clause in your fee agreement that expressly instructs your client not to post about anything related to the case (or maybe even not to post at all). You might also ask for links to all of your client’s social media accounts so you can take a look at what’s on them now and check them periodically.
Do tell your client not to delete existing online posts. Make sure your clients understand that they shouldn’t delete any existing posts, even if they could hurt the case, because doing so may amount to spoliation of evidence. Some jurisdictions allow lawyers to instruct clients to delete information from their social media pages, but even those generally require that the lawyer take appropriate action to preserve the information should it prove to be relevant and discoverable. The safe thing to do is let your client know upfront that they should curb their social media posting.
View Renee’s program The Ethics of Social Media, available On Demand. And get more practical advice and information from Renee in her program Introducing Social Media Evidence: Foundation and Authentication Issues, also available On Demand.
Other CEBblog™ posts you may find useful:
- How the New Rules of Conduct Affect Your Social Media Use
- How to Authenticate a Social Media Post
- Using Social Media to Research Prospective Jurors
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