Article Reviewed: Social Media and the Lawyer’s Evolving Duty of Technological Competence
Because of its continually growing popularity and widespread use, social media has become a prominent player and resource in recent lawsuits. Lawyers now not only have to make sure their clients are keeping up good appearances in public but also online through social media platforms. The policies regarding this issue of evidence from social media give lawyers some leeway in helping their clients clean up their image not just in person, but online as well as long as they do not withhold any evidence.
Social Media and the Lawyer’s Evolving Duty of Technological Competence
By Angela Youngblood
The population of social media users is continually growing, and along with the number of users, the number of posts and content they are sharing or creating continues to grow as well (Cooper, 2014, p. 463). Amongst the population of social media users, there are obviously many people who are undergoing some sort of legal trial or litigation. Because of their crucial circumstances, crucial steps should be taken to manage not only their physical and public appearance, but their online appearance also. Social media is becoming a very influential and revolutionizing component of current legal processes and trials as it has been used numerous times as evidence in different lawsuits.
With social media becoming more and more important in the legal realm, “lawyers need to advise clients competently and ethically concerning their social media use” so that their social media lives won’t result in negative ramifications in their legal proceedings. Two ethics opinions, the New York County Opinion and Philadelphia Bar Opinion, recently emerged to give advice on how lawyers may help their clients manage their social media presence (Cooper, 2014, p. 463). Unfortunately there is history of cases being lost due to a client’s negligence of tailoring their social media presence to fit the image they are trying to portray in their trial. To keep this from happening in the future, lawyers must assume the responsibility, or duty, to understand social media and how it can affect their client’s case. This was made effective in through the addition of a new rule in the Model Rules of Professional Conduct made by the ABA House of Delegates, which was that lawyers must stay informed of current and significant changes in technology including its different laws and practices, and its risks and benefits (Cooper, 2014, p. 464).
The Philadelphia Bar Opinion emphasizes the importance of applying this new rule and says that “’a lawyer should (1) have a basic knowledge of how social media websites work, and (2) advise clients about the issues that may arise as a result of their use of these websites’” and both of the Opinions implore that lawyers follow this instruction so they do not neglect and disappoint their clients (Cooper, 2014, p. 464). There are different things lawyers should do to ensure they do not disappoint their clients and fail as their lawyers. The first thing lawyers should do is instruct their clients of the potential negative consequences of not cleaning up their social media image and advise them to not post anything online that could be detrimental to their case (Cooper, 2014, p. 464).
The opposing party in a case can try almost anything to find means of incriminating evidence, including searching online. A client’s social media presence is so critical because it is so easy to find evidence online through social media, proving that lawyers and their clients need to be keenly aware of the possibility of the opposing party accessing anything and everything about the client online. The New York County Opinion gives advice on how lawyers can help their clients by “‘[reviewing] what a client plans to publish on a social media page in advance of publication, [guiding] the client appropriately’, and even [counseling] the client ‘to publish truthful information favorable to the lawyer’s client’” (Cooper, 2014, p. 464). So basically, lawyers can sit down with their clients and create a plan or strategy to help the client effectively manage their social media presence to help benefit the outcome of their case.
Although the future use of clients’ social media is tremendously important, so is their past history on social media. How can lawyers help their clients managing their past posts and profiles on social media, save their clients’ image and case, and also follow the laws of proper and fair litigation? The Rules of Professional Conduct have not been able to assist lawyers very much in this facet of social media and the law; inconveniently, the only rule that has been provided is “that ‘a lawyer shall not unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal’ evidence” (Cooper, 2014, p. 465). This term “unlawfully” makes this rule rather ineffectual since the definition of what types of behavior are considered unlawful may be ambiguous or indefinite (Cooper, 2014, p. 465); this becomes even more so when it concerns the use of social media since it is fairly new territory in the world of legalities and law.
With the possibility of a trial going wrong because of incriminating evidence from social media like the case of Allied Concrete Co v Lester, where “the defendant’s lawyer discovered some potentially embarrassing pictures of the plaintiff on Facebook and MySpace” which led to the plaintiff’s lawyer telling him “to ‘clean up’ his Facebook and MySpace pages” (Cooper, 2014, p. 465). However, due to their tampering with evidence that the defendant’s lawyer had already found, they ended up having to pay “$722,000 for their misconduct” (Cooper, 2014, p. 465).
In order for lawyers to keep their cases from ending up like the Allied Concrete Co v Lester case, then they must be careful to not give bad advice to their clients which could lead to them being charged for concealing evidence and possibly cause them to lose their case. However, what lawyers can do to help their client before any evidence can be found, is to have the client change their privacy settings on their social media accounts so that access to their posts and media won’t be granted to just anyone, and only to those who they allow to view it (Cooper, 2014, p. 466). Yet, to be extra-safe, they can also keep any relevant evidence on hand in case it will become necessary for it to be used in the trial (Cooper, 2014, p. 466).
Cooper, B. P. (2014). Social Media and the Lawyer’s Evolving Duty of Technological
Competence. Legal Ethics, 17(3), 463-466. DOI:10.5235/1460728X.17.3.463