Discussing Social Media with Clients

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There are plenty of reasons why you should use social media as part of your marketing campaign.

One reason to stay on top of social media is so you know what your clients are potentially getting themselves into. In case you’ve been living in a cave, social media is used as evidence in cases.

Here are some tips for discussing social media with your clients.

Add it to your intake form

Name? Address? Facebook page? Those should all things you are talking about once a client comes into your office. Do not think that Facebook profiles or only relevant in criminal cases or divorce cases. Clients write all sorts of things on their Facebook page that might be relevant to the matter you are handling.

Social media, however, is constantly changing and evolving, which means your intake form needs to evolve as well. Don’t simply ask whether they have discussed any of this on their Facebook page. Ask about Twitter, blogs, commenting on news articles, and whatever new social media thingee Google has recently rolled out.

If there is something there, look at it

If your client says they have discussed something on Facebook related to the case, go look at it. Do not assume that some seemingly innocent comment is actually innocent. Check it out for yourself and decide how damaging or harmless it is.

In addition, remember the rules of evidence. The Federal Rules are fairly straightforward—do not destroy any potential evidence. Your state’s rules may vary slightly, but I doubt it. You should read your local rules, but suffice to say that instructing your client to delete a damaging Facebook post is likely a bad idea in every jurisdiction. Along those lines, be sure to check your rules and inform your client of the potential consequences if they decide to destroy evidence.

Check your client’s privacy settings

Again, do not delete damaging posts and do not instruct your clients to delete anything, that is a recipe for disaster. But that does not mean you should let your client’s profile be open and accessible to the public.

I go through my client’s privacy settings one item at time. Frankly, I cannot think of a case where anything relevant was on my client’s page. But my clients sure appreciate that I am helping them maintain some digital privacy. Even if there is nothing evidentiary on your client’s page, opposing counsel may still go snooping to find out information about your client. Make them do that during discovery, not by leaving your client’s Facebook page out in the open.

Even if you hate social media, you still need to know how your clients are using it.

(photo: http://www.flickr.com/photos/birgerking/5600215736/)

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  • I would suggest including a social media clause or policy in your engagement agreement with the client and in any terms and conditions or disclaimers for your firm website. I have a policy that lets prospective and existing clients know up-front that I will not “friend”, “follow” or otherwise communicate with them using social media applications because it it not encrypted, not secure and not the best way to protect the confidentiality of their information.

    As you suggest above, I also try to educate my clients, especially because they are online working with me on a virtual law office, about the risks of using social media. Some of them have a strong grasp on it and others just post anything and everything online. Education is a key component to help them keep their information private.

    • I like your policy on non-friending. Was that becoming an issue with clients?

  • An excellent view at social media for a law firm. I like that you suggest to use social media questions (such as their Facebook page) as part of intake questions. Even if everyone doesn’t answer, it’s a good way to get a lot more clients involved with you online.

  • In addition to asking clients about their social media use, I think it is a good idea to check the major social networks for all clients and witnesses. I’ve been able to find a surprising amount of public information on key witnesses’ Facebook profiles, for example.

    • I’m pretty sure I located a witness I needed to subpoena via a very public social media profile.

  • Both Sam and Randall have good points. I have gotten not just deposition questions from opposing counsel but also Interrogatories from opposing counsel asking about social media use. In addition, I have found good information on the opposing party. Currently, counsel in litigation matters would do well to do a criminal check on both side (this is public record in PA) as well as social media check at the outset of the case.