David Donovan, The Daily Record Newswire
Many lawyers hire social media consultants to help the firm bring in clients. But once the clients arrive, lawyers often need to act as social media consultants themselves. I’ve lost count of the number of cases I’ve read in which a Facebook post or two probably affected the outcome.
For attorneys from an era when “twitter” was what you did when a pretty girl or boy walked by, it’s not an easy role to assume. (I’ve heard judges confess in open court to bafflement over what a Facebook is, or why anyone would want one.) But a proposed North Carolina Formal Ethics Opinion would officially extend the duty of attorneys to provide competent and diligent representation to clients into the virtual world.
The State Bar’s ethics committee voted on April 25 to publish proposed 2014 FEO 5 “Advising a Civil Litigation Client about Social Media” for comments from the bar. The proposed FEO will be considered at the State Bar Council’s next quarterly meeting on July 24.
Proposed 2014 FEO 5 states that, “To the extent relevant and material to a client’s legal matter, competent representation includes knowledge of social media and an understanding of how it will impact the client’s case including the client’s credibility. If a client’s postings on social media might impact the client’s legal matter, the lawyer must advise the client of the legal ramifications of existing postings, future postings, and third party comments. Advice should be given before and after the law suit is filed.”
The proposed FEO also provides guidance in the thorny area of advising clients about what they should or shouldn’t delete, clarifying that, in general, relevant social media posts must be preserved. If removing a post doesn’t constitute spoliation and isn’t otherwise illegal or a violation of a court order, the lawyer may instruct the client to remove existing social media posts — but if there is a potential that destroying the posts would constitute spoliation, the lawyer must also advise the client to preserve the postings, whether in print, on a memory stick, or in the cloud.
Additionally, the proposed FEO makes clear that a lawyer may instruct a client to change the security and privacy settings on social media websites to the highest level of restricted access, if such advice doesn’t violate the law or a court order.
Perhaps this is easy for me to say as a digital native, but all of this seems like common sense. There are many types of cases where evidence gleaned from social media is introduced into court and can occasionally make or break a case. We’ve written about criminal law, personal injury/worker’s comp, family law/custody and negligence cases, just for starters, where social media content was a major issue in the case.
Today, advising clients about what they should — or should not — say and do on social media is as crucial to these kinds of cases as preparing a witness for trial. No competent attorney would go into a trial without prepping his or her witnesses. Since all that critical prep work can be severely undermined because of one stray Facebook, Twitter or Instagram post, social media prep is now an essential part of that process.
The good news, at least, is that social media prep should be a lot easier than witness prep. Cross-examination is harrowing, and it’s tough to prepare a witness for every question that opposing counsel might ask. Luckily, clients have total control over their own social media posts, and a large portion of what they need to know can be summed up in four words: Think before you post.
