Social Media and Litigation

May 5th, 2017

By Barry Landy

Even the most hide-bound and traditional old-school litigation lawyer has heard about social media. Facebook, Snapchat, Twitter, Instagram, Pinterest, Linked-In, we have all heard the names of these web-sites, and probably many of us are using one or more of them, but honestly, what do you really know about them?

For many lawyers, the answer is “not much” and unfortunately, in today’s day and age, that is simply not good enough. Not only are you selling yourself short if you are ignorant about social media, you are selling your clients short as well.

Any time that you are acting for a client, you have a duty of zealous representation. That means taking advantage and using whatever tools are out there to enhance your client’s odds of winning and one big tool is social media. Learning everything you can about the opposing party and his or her legal counsel is an absolute commandment, not an afterthought, and social media is the first tool to learn things that may give you a commanding advantage in litigation.

It is trite to say that lawyers have an ethical obligation to keep abreast of changes in the law. Constant reading and remaining up to date are expected. This is de rigueur for any lawyer who expects to act for a client and achieve success. Well, remaining up to date also includes keeping up to date with technological changes and there is no bigger technological change around today than the impact of social media on the litigation process.

Consider the following scenario: You are consulted by a prospective client who is facing potential or imminent litigation involving claims of unwelcome sexual advances to members of the opposite sex. Your client is a prolific poster on Facebook and Instagram, and his posts include somewhat unflattering photographs that can be interpreted as lewd or suggestive. Can you counsel your prospective client to delete these unflattering Facebook or other social media posts?

Arguably, this type of advice would amount to spoliation, namely intentionally counselling your client to destroy evidence that might be harmful to his case. Not only would this type of advice be a gross ethical violation, it most likely would also constitute a civil law fault because Article 20 of the Quebec Code of Civil Procedure states: “The parties are duty bound to co-operate and, in particular, to keep one another informed at all times of the facts and particulars conducive to a fair debate and make sure that relevant evidence is preserved.”

The mere fact of suggesting to your client to “cleanse” his or her social media profile is probably proof of the fact that you know you are really doing something very bad, namely counselling your client to destroy relevant evidence.

On the other hand, how about advising your client to change the privacy settings on his or her social media accounts? Do you even know what that means? For instance, on Facebook there are settings which allow only your “friends” to see what you have posted, whereas other settings allow for “friends of friends” to see your posts, or for the public at large to see your posts. There is a vast difference between these settings, in terms of who can see your client’s posts.

In my view, there is nothing either ethically or legally wrong in telling your client to change his or her privacy settings. You would not be counselling the destruction of any evidence, as opposed to the scenario where you advise a client to delete damning posts or information from a social media website.

Any attorney contemplating litigation who is worth his salt is checking the social media profile of his adversary and that includes not only the party who is the object of the lawsuit, but also the attorneys representing that party.

Can you honestly say that your own social media profile is clean? It contains nothing that you would be embarrassed for people to see? If not, it might be time to do a little editing yourself!

Of course, there are many other social media law issues and considerations to think about. Can you blog about your court victories? If the idea tempts you, bear in mind that you owe your client a duty of complete and total confidentiality. Your client may not react very well to having the details of his case revealed, even if arguably some of the information may be public in that it is recorded in a public judgment.

And then there is the issue of using social media to plead your client’s case in the court of public opinion. Once again, there are numerous potential ethical transgressions that can occur where social media are used in a thoughtless manner.

The take-away here is simple: Being conscious of the role and power of social media is something that lawyers ignore at their peril. Data is out there. You have the legal duty to find it and use it.