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The pervasiveness of electronic communication, through emails and texting, or on social media platforms like Facebook, Instagram, Twitter, Snapchat and the next new thing, is fraught with challenges for lawyers and litigants. Attorneys have to navigate the terrain on multiple levels: compliance with professional ethics and governing law, and meeting, or sometimes dashing, client expectations.

Lawyers must set the gold standard of legal compliance, so adhering to our professional ethics and current law serves all parties by demonstrating model behavior. In recent years, the attorneys’ ethics rules began requiring attorneys to maintain a proficiency in and understanding of the benefits and risks of relevant technology (see RPC 1.1, Comment 8). This has broad applications, but overall it means that we have to gain an understanding of the technology that affects our clients: plaintiffs, in my case.

Since a plaintiff’s posts on social media like Facebook, Instagram or Snapchat can be misconstrued to undermine a claim, it is up to me to advise my clients of the consequences of their social media activity and warn them against posting. The fact that an account has specific privacy settings does not shield posts on social media from discovery, these self-established barriers do not apply to the judiciary. Ethics rules bar attorneys from engaging in deceit to gain access (see RPC 8.4) but they are not precluded from issuing a formal discovery request or subpoena, rather it is imperative under the same ethics rules that they do so if it could benefit their client.

Once embroiled in litigation, plaintiffs must expect that any communication generated electronically, not just social media, but texts and emails, is fair game; and because it was generated electronically, it likely has been preserved on a server or in a cloud somewhere up there. Indeed, if it is relevant to the litigation the party may also be affirmatively compelled to preserve it. This may work to our advantage, but in most cases it can be detrimental as it is plaintiff’s burden to prove both that the defendant is at fault and that they were injured to the extent claimed. You can imagine the glee when a defendant’s attorney finds a photo of the plaintiff dancing after claiming disability stemming from his injuries following a motor vehicle accident. This fleeting snapshot, that may represent the 10 painful seconds the plaintiff was able to stand for the father-daughter dance at his oldest’s wedding, may sink his claim and paint him as liar. This is why plaintiff’s attorneys are so vigilant because the virtual representation of the plaintiff oftentimes has little relationship to the truth.

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