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It’s time to talk to your clients about social media. It doesn’t matter what kind of law you practice. Whether it’s admitted at trial or not, Facebook postings and tweets can be strong fodder for all stages of litigation. But do you know how to have a frank discussion with your clients about social media? What kind of advice should you give them on the subject?
Make Things Crystal Clear
Margaret DiBianca is the author of Ethical Risks Arising from Lawyers’ Use of (and Refusal to Use) Social Media as well as several other papers on the topic. I had a chance to speak to Margaret recently about how lawyers should communicate with clients about social media. I asked for her number one piece of advice on talking to clients about these issues. She said:
Do it early and often. The worst thing to do is assume the client understands the consequences of their social-media posts—they don’t. When you tell a client, for example, who is subject to a TRO in a noncompete case not to discuss his former employer, specify that, by “discuss,” you also mean “discuss on Facebook.” People generally do not yet understand that posts made to Facebook (and similar social-networking sites) will be considered communicating just like publishing it in a local newspaper would be communicating.
I couldn’t agree more. As a law clerk I’ve seen numerous cases where someone was advised not to interact with another person, then went home and wrote on their Facebook wall. It may seem obvious, but it’s very important to spell this out with a client. Normally you may be hesitant to get so simplistic with a client. But Margaret is right. If you don’t make it clear to the client that when you say “don’t talk about it” you also mean “don’t write anything about it online,” the message may be lost. Better to sound like you’re repeating yourself now than lose the case and possibly a client down the line.
Know the Territory
It’s very difficult to talk with someone about social media when you don’t know the territory. So get a Facebook account, play around with Twitter, and join LinkedIn. Familiarize yourself with these sites so you can help your clients. Again, these issues are cropping up in almost every field. I asked Margaret what kind of cases are running into social media issues besides the oft-discussed divorce cases:
Oh, lots! Criminal law, for certain, has been affected in significant ways (for both sides—defense and prosecution, as well as law enforcement). My area of practice—labor and employment—has also been impacted by social media. Employers who terminate employees for Facebook postings has been the hot area of litigation by the National Labor Relations Board. But other areas include non-compete and non-solicitation cases (employee contacts former clients or coworkers via social media, which constitutes prohibited solicitation, etc.). There have been a few cases on trade secrets, as well, that arise in a similar context. And evidence of harassment and discrimination found on social media continues to come up.
In personal-injury lawsuits, plaintiff’s postings on social-networking sites have been fertile grounds for damages evidence. Also, insurance companies are using social-media investigations to find evidence that a person is not, for example, disabled from working and, in turn, using that as the basis to deny or revoke disability benefits.
Keep Tabs on Clients
Now that you’ve familiarized yourself with social media and made things clear for your client, your job still isn’t done. Margaret argues in her article that attorneys may have a duty to monitor clients’ online activities. I don’t think it’s a good idea to become friends with every client on Facebook. However, it may be smart to create a dummy account for your firm that can friend clients and follow them on Twitter. That way, even after you talk to them about social media, you can keep an eye on them. Of course, there are down sides to this system. Monitoring numerous clients’ online lives could be a full time job in itself. For that reason, I would recommend only the occasional glance. You don’t need to know what your client got her daughter for her sweet sixteen. But you don’t want to walk into a deposition and have opposing counsel hand you an incriminating photo they found on Facebook.
Knowledge is power. That’s why you need to teach your clients about proper social media use. Create a one or two page document detailing how to make posts private and give it to your clients after your initial meeting. You don’t need to become a social media consultant. You’re a lawyer. But you have a duty to effectively represent your clients. In today’s world, effective representation can mean taking these steps.