At no other time in history has rapid and open communication been so widespread and consequential. With government policy changes happening 140-characters at a time, and whole lives being documented in public for the digital world to follow, social media has forever changed how society interacts and regards privacy.
And far from sitting on the sidelines of this communication evolution, attorneys are finding themselves grappling with an explosion of electronically stored information (ESI), much of which could potentially be used as evidence in litigation.
At Legalweek’s “Social Media: Ethics and Records Considerations,” the message was clear: social media is a double-edged tool, but one that every attorney must understand and consider in his or her practice.
Here is a look at the three most pivotal legal ramifications of the social media era facing modern day attorneys:
1. Social Media Should be Used to Research Jurors — With Caveats
Social media has pervaded so much of everyday life that it often cannot be ignored by attorneys during jury selection. The requirement of conducting internet research—which in many cases, includes the use of social media—on a potential juror is mandated via a variety of Bar Association ethics opinions and case law.
John Isaza, partner at Rimon PC, noted that attorneys should know by now to perform “due diligence on jury selection. Otherwise, [the court is] going to call a mistrial.”
He specifically pointed to the 2010 Missouri Supreme court case Johnson v. McCullough, where the court chided attorneys for failing to perform internet research on a juror after certain inconsistences with the juror’s statements led to a mistrial.
The need for internet research was also highlighted by the ABA in its 2014 Formal Opinion 466, which notes that “unless limited by law or court order, a lawyer may review a juror’s or potential juror’s Internet presence, which may include postings by the juror or potential juror in advance of and during a trial.”
However, the ABA added that “a lawyer may not communicate directly or through another [individual] with a juror or potential juror.” This is a real possibility, Isaza noted, in the age of social media.
Many state and local bar associations have followed the ABA’s lead, restricting not only communication with jurors through social media, but adding them as “friends” on social media platforms as well.
The New York City Bar Association, for example, concluded that “if a juror were to (i) receive a ‘friend’ request (or similar invitation to share information on a social network site) as a result of an attorney’s research, or (ii) otherwise to learn of the attorney’s viewing or attempted viewing of the juror’s pages, posts, or comments, that would constitute a prohibited communication if the attorney was aware that her actions would cause the juror to receive such message or notification.”
2. Social Media Platforms Leverage User Data to Build Character Profiles
Social media channels are often essential and inexpensive marketing tools leveraged by many legal industry businesses and attorneys. But its benefits to users often come with a cost.
Kevin Fumai, managing counsel at Oracle, noted that social media platforms are generating volumes of data on users’ posts and real-time activity.
“Do you realize that every click, every movement, you do on social media is being tracked?” he asked.
Many social media platforms, he added, are legally able to use the data they collect in any way because they have written their terms of services as broadly as possible to avoid regulatory scrutiny.
Given the wide leverage these platforms have over user data, Fumai advised attorneys to be mindful of “data you are going to be creating through the use of a platform, and how it will be used or potentially misused.”
Most of the time, Fumai said, one can expect data to be leveraged “to create a profile of who you are, to not profile you specifically, but someone who is like you based on what you have done on social media and online.”
While much of this profiling is used for advertising purposes, attorneys can also aggregate social media posts manually to create profiles of individuals for use in a trial court or in an investigation.
But they too themselves can be profiled by anyone visiting their page, be it potential clients, or even cyber attackers looking to gather information and assess online vulnerabilities.
“Be cognizant,” Fumai cautioned, that a social media post has the potential to exist forever once put online. “And if you don’t see [a post] for some time or ever again, it can still be harvested” for many purposes.
3. Attorneys Must Take Steps to Preserve Social Media Evidence
Given the relative novelty of social media, some attorneys fail to remember that its content is discoverable and falls under standard discovery rules of preservation and production.
Jerry Cohen, partner at Burns & Levinson, cited a well-known case of a Virginia attorney who was reprimanded with a five-year suspension and a significant fine for advising his client to delete Facebook photos before a trial concerning the death of his wife. Cohen explained that such an action is considered spoliation of evidence under the Federal Rules of Evidence.
This does not mean, however, that pending a trial, clients cannot delete social media posts or alter their privacy settings restricting access to such posts altogether.
“The Philadelphia and Florida Bar Associations have said a lawyer can instruct the client to delete” social media posts, Cohen said, granted that attorneys take steps to preserve the content in another form.
Pending litigation, though, is not the only reason that clients, and attorneys, would need to preserve social media content.
Isaza noted that as “some social media content could rise to the level of record, it [can be] subject to retention,” given specific regulatory and internal rules.
He added that since social media content is often considered marketing material, it can likely fall under the SEC retention requirements for marketing, for example.