Facebook posts are now being used for evidence in divorce cases. Before long, social media based evidence will pop up in all sorts of other cases. When you sign clients to retainers, are you talking to them about their social media usage?

Talk about it right away

When a client signs a retainer, you need to talk about social media. Have they already talked about the case on Facebook? Did they tweet about how much they hate the Defendant or the Plaintiff?

If there is information out there, you need to know about it. Just as important, your client needs to understand the ramifications of continuing to blab to the entire internets about their case.

What are your options?

One solution is simply telling your client to stop using Facebook, Twitter, etc. Realistically, however, most people are so accustomed to using social media that is not going to happen.

Another option is to tell them not to talk about anything related to their case. That is probably too vague, and clients’ versions of what is important to their case can be different from your opinion. If you can define it, and you trust your client, this is worth a shot.

You could tell your client not to post anything. They can still go on Facebook and read other people’s posts, but they should not post anything themselves. Again, this requires believing your client can restrain themselves.

You can also sit down with your client and make sure all their social media accounts have the proper privacy settings. The problem here is that you never know what was already made public. In addition, if the other party is somebody they know, the other party still probably has access to their social media updates.

The best practice? Stop using it during a case

You might have a hard time getting a client to agree to a vacation from social media. But if they are serious about their case, it is the only way to definitively avoid their next post becoming evidence in their case.

1 Comment

  1. Two years ago, while a Public Defender in the Army (Trial Defense Service), my junior counsel had a nightmare situation involving social media.

    The client was being prosecuted for a number of indiscretions as a Drill Sergeant, and the evidence against him was completely based on the testimony of other Soldiers who were facing adverse actions themselves. About a week before trial, the prosecutors came down to the office with a stack of papers printed from the client’s blog (of which his attorney had no knowledge). To our shock and surprise, the client was blogging about every meeting he had with his assigned defense counsel. He discussed the strategy, tactics, and preparation. Many of them started with “Today I visited my lawyer, and he told me that…”

    The client even posted pictures depicting him continuing to commit some of the crimes for which he was being charged (violating a restraining order and others).

    Now, a thorough discussion of social media is part of my intake. So far, all has gone well. My niche is Military Criminal Defense, and my clients are pretty good at following directions from me. Plus, it is helpful to have a story like the one about the drill sergeant to make my point stronger.

    As an aside, we always check MySpace, Facebook, etc on all witnesses (especially the complaining witness), and we often use it for cross examination purposes. For some reason, the witnesses always act surprised when we pull out a printout of their MySpace page.

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