At CLEs over the past few months, lawyers have seemed surprised to hear me suggest that the duty of competence includes advising clients to refrain from social media posts that could be detrimental to their cases.
The surprise surprises me.
Indeed, I’ve often followed up by asking whether anyone has had a client’s social media post used by the other side. The raised hands and nodding heads tell me that it happens.
So if we know that it’s happening a lot, shouldn’t we advise our clients not to do it?
Last summer, the ABA Journal posted Celebrity attorneys face challenges, ethical pitfalls. One of the challenges mentioned is clients’ use of social media. Here are two paragraphs:
“ ‘Likely you have a whole team of people doing damage control,’ says Ann Murphy, a professor at the Gonzaga University School of Law who published ‘Spin Control and the High-Profile Client’ in the Syracuse Law Review. ‘The attorney needs to be very, very careful to keep the client’s legal advice separate.’
‘Attorneys, as part of their ethical duties, must now counsel their clients on the use of social media,’ Murphy says. ‘Once it is out there, it is out there. Even if someone deletes a Facebook post—it likely has been saved as a screenshot and is of course subject to discovery,” she adds. ‘Personally, I think the best advice is tell the client that any posts about his or her case must be viewed in advance by the attorney.'”
I get it. Both the ABA Journal and Professor Murphy are focusing on lawyers who represent celebrities. Still, look again at one of Professor Murphy’s statements:
” ‘Once it is out there, it is out there. Even if someone deletes a Facebook post—it likely has been saved as a screenshot and is of course subject to discovery. ‘ ”
That could be any client, celebrity or not.
The ABA Journal poses a “question of the week.” Each new question is followed by the “featured to response” to the prior week’s question.
Last week’s question was What advice do you give your clients about social media?
This week’s – How do you stay alert during long meetings or trials? – includes the featured response to last week’s social media question. The featured response:
- “In some ways, I take a more laissez-faire approach than many attorneys: Yes, I would love it if my clients would avoid social media, but at the end of the day, they’re going to do what they want to do. If they were great at heeding sensible advice, they probably wouldn’t have ended up in my office in the first place. I ask them to think before they post. I ask them to review their privacy settings. I ask that they avoid posting things directly related to the case at hand. And then, I just cross my fingers that the guy on trial for trying to strangle his girlfriend doesn’t post a meme about strangling one’s girlfriend.” (emphasis added)
The advice in bold? Seems pretty simple.
Not only that, when we know that the other side is looking, it’s advice that competent lawyers provide.