Originally Published Jan. 31, 2012
As trial lawyers continue to test the discoverability of information on Facebook without guidance from an appellate court, family law practitioners are reporting that it’s becoming a near rarity for a case to get through family court without use of the social media giant, or some other form of online networking, coming into play.
And with judges granting "extreme latitude" in the allowance of Facebook posts, pictures and updates into family courtrooms, lawyers have a simple message for their clients: Get off, or face your own Internet profiles in court.
While Facebook was no stranger to alimony or divorce proceedings — "It makes it easier to have an affair," as one lawyer put it — the biggest forum in which the world’s most popular website had found a home was custody cases.
"By and large, we haven’t had a custody case where something Facebook-related doesn’t come up," said Jonathan Hoffman, an attorney specializing in family law.
Hoffman is an associate at the Norristown, Pa., offices of Weber Gallagher Simpson Stapleton Fires & Newby, which has reshaped its practice to accommodate social media into its offices. The shift has been two-fold, with measures to protect Weber Gallagher’s clients and efforts to vitiate their opponents’ cases through their online identities.
In one custody dispute, Weber Gallagher partner Christian V. Badali said, a father created a fake Facebook page pretending to be the mother. It featured pictures of the mother in a bathing suit along with fake posts and status updates.
The move wouldn’t have been all that damaging, or even conspicuous, Badali said, if the man hadn’t reached out to the mother’s actual friends with requests to connect. When litigation came around, the court admitted the faux Facebook page into evidence and the mother prevailed. The website wasn’t the only factor in the court’s decision, Badali admitted, but it certainly contributed.
In another one of Badali’s cases, a father’s Facebook post said, effectively, that since he couldn’t punch the mother of his child, he would tape her picture to a punching bag. Badali said he introduced the post as evidence, and his client left court with primary custody of the couple’s child.
These examples were a small sample of what seemed to be an endless supply of anecdotes that lawyers not-so-coyly said they could attribute to their clients’ less-than-perfect judgment.
"You’d be surprised; people just don’t think," said family law attorney Helen Casale, of Hangley Aronchick Segal Pudlin & Schiller. "That information has been used time and again in custody cases. It’s a surprise to the attorney because they have no idea their client’s doing it. It’s brutal. It really is."
Casale said she had even come across a party making a derogatory comment about an open case’s presiding judge. "Do you think that’s a bright idea?" she said.
While Casale acknowledged that custody cases were the most fertile ground for Facebook issues to emerge, she had encountered several examples where the website had contributed to the demise of a marriage.
But once a complaint is filed, Facebook tends to affect divorce litigation to a lesser extent, if at all.
The story usually goes like this: A client will come in looking to file a divorce complaint after finding out the client’s husband or wife was having an affair. Ultimately, and with increasing frequency, the affairs sprouted and developed from a connection made on the Web, Casale said.
Once that connection is established, at least for divorce proceedings, she said Facebook’s role in the courtroom is minimal.
Because Pennsylvania is a no-fault divorce state, the online genesis of the affair mattered little for the litigation it prompted even if it did get the ball rolling.
"If it provides you with the answer you need as to whether you need to file this divorce complaint," she said, "then I don’t need the proof."
Nonetheless, Casale acknowledged that social media had, to a large extent, reshaped her practice. The Facebook conversation is one she said she has with every client.
"If we’re not thinking about social media, then we’re doing our clients a disservice," she said.
Learning the Hard Way
A common thread among family lawyers interviewed was that, despite warnings of Facebook’s perils to an open case, many of their clients don’t really seem to change their use of social media. Or care, for that matter.
"We tell our clients very, very strongly … get off Facebook," said Andrew D. Taylor, who is also a partner at Weber Gallagher’s family law practice. You can sign back on once your case is over, he tells them.
"But for now, you’re under a microscope, so knock it off."
Do they listen?
"Nope. Not always," he said.
However, Taylor said it was hard to imagine ever getting to a point where he would turn away a client because he or she refused to sign off of Facebook.
If the parties won’t sign off, lawyers said a list of the do’s and don’ts of Facebook and litigation would come next.
Badali said he instructs clients not to post anything about their former partners, nothing about their kids and nothing about their cases.
By and large and despite the warnings, Badali said, not much is changing.
"I haven’t seen a lot of change in behavior," he said.
The activity getting clients in trouble often takes the same form: nasty comments about the other party, complaints about the process of litigation and, perhaps most importantly, posts and pictures that conflict with statements made to the court.
The first time Taylor used Facebook to assist with one of his cases, for instance, was in an alimony dispute about two years ago. Under state law, a party to a divorce action is not entitled to alimony if he or she is living with a member of the opposite sex.
In the case, Taylor discovered that was just the case for his client’s ex-wife through a perusal of her Facebook. When he asked if she was living with anybody, however, she said no. Then, Taylor said, he showed the woman print-outs of her own Facebook status updates about the couple’s new place, pictures confirming the move, and, of course, her vaunted "relationship status."
Her lawyer called for a quick recess, and when the legal team came back their story was different.
"’Oh yeah, we’ve been living together,’" she said upon returning, Taylor said.
As for drunk Facebook pictures, "they always make great exhibits in a custody trial," he added.
Taylor said his rule of thumb for probing an opponent’s Facebook use is: If he can get on it through his account, then he will.
As he put it: "If the person is dumb enough not to have any privacy settings and I can go on my account and look at it, then it’s fair game."
Once the discovery involves an attorney using his or her client’s login or friending an opponent under fake pretenses, Taylor said, the ethical terrain gets murky.
In a 2009 advisory opinion from the Philadelphia Bar Association, a professional guidance committee laid out a set of circumstances where an attorney employs a third, unrelated party to send a friend request to the opposing party in order to "provide information posted on the pages to a lawyer for possible use antagonistic to the witness."
The committee noted that several Pennsylvania Rules of Professional Conduct were implicated by such a course of conduct. It cautioned against lawyers undertaking such a "deceptive" strategy.
The body of Facebook case law has grown at the common pleas level over the past year or so. In a review of cases covered by The Legal Intelligencer and Pennsylvania Law Weekly, courts have denied defense motions for Facebook discovery on four occasions and granted them on three.
But the family court cases — typically not disseminated for privacy concerns — marked a different landscape of litigation.
According to Badali and Hoffman, judges are "liberally" granting discovery requests. For example, if a husband raises the issue of whether his ex-wife should be posting pictures of the couple’s children online, a judge is likely to let him conduct discovery on that point, the lawyers said.
They didn’t expect the issue to lose any steam going forward.
"Discovery and social networking is probably one of the biggest issues we’re going to hit in 2012," Badali said.