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Social Media, Lawyer Liability and Ethics Paper

Social Media, Lawyer Liability and Ethics Paper

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Published by Robert Hilson
Jett Hanna, Senior Vice President at Texas Lawyers' Insurance Exchange, outlines selected ethical and malpractice issues that may arise from how lawyers utilize social media in both the business of law and in representation of clients. The paper will look first at social media as evidence generated by clients and adversaries, and then as generated by lawyers.
Jett Hanna, Senior Vice President at Texas Lawyers' Insurance Exchange, outlines selected ethical and malpractice issues that may arise from how lawyers utilize social media in both the business of law and in representation of clients. The paper will look first at social media as evidence generated by clients and adversaries, and then as generated by lawyers.

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Published by: Robert Hilson on Apr 24, 2013
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Social Media, Lawyer Liability and EthicsBy Jett HannaIt should now be a matter of professional competence for attorneys to take the time toinvestigate social networking sites.
Griffin v. Maryland, Case No. 1132, Court of Special Appeals Maryland, May 27, 2010, slip op. at 14quoting Sharon Nelson et al., The Legal Implications of Social Networking, 22 REGENT U. L .REV. 1,at 13 (2009/2010), online at http://mdcourts.gov/opinions/cosa/2010/1132s08.pdf.An opinionreversing this case is discussed in the text of the article below. The import of the statement above isactually enhanced by the reversing decision.
(T)he 2011 American Bar Association (ABA) Technology SurveyReport…recorded that 62%...of individual attorneys say they have LinkedInprofiles
Large legal firms need to get smarter about social media to compete, TechJournal,December 23, 2011,http://www.techjournalsouth.com/tag/legal-services-use-of-social-media/.
Social media affects the legal profession in two broad ways. Lawyers are using social media tocommunication with others, both personally and professionally. The rest of society is as well, whichmakes social media an important source of evidence in more and more cases. This article outlines selected ethical and malpractice issues that may arise from how lawyers utilizesocial media in both the business of law and in representation of clients. The paper will look first atsocial media as evidence generated by clients and adversaries, and then as generated by lawyers.Suggestions will be provided on how best to confront the ethical and malpractice issues. As a lawyerfor a legal malpractice insurance carrier, I wish to avoid implications that any of my suggestionsconstitute the standard of care. Even weak disciplinary suits and malpractice claims can cost lawyersmoney and time, and some of my suggestions may help to avoid weak allegations.
Definition and Characteristics of Social Media
Focusing too much on social media as a unique form of communication is perhaps unwarranted.Merriam Webster defines "social media" as "forms of electronic communication (as Web sites for socialnetworking and microblogging) through which users create online communities to share information,ideas, personal messages, and other content…"http://www.merriam-webster.com/dictionary/social%20media.Key elements of the definition are:1. Electronic communication2. Formation of online communities3. Sharing of contentExactly where social media begins and other types of communication end is not clear. For example, anemail subscription list could be thought of as social media, since multiple parties see allcommunication to the list. Facebook has a private messaging feature that is much more like private
email than are posts on a person's wall. Blogs may or may not invite social interaction that creates acommunity. The aspects of social media that may be of concern may not depend on whether thecommunication is only a one way broadcast or directed at only to one person. Social media storageand availability can share technical characteristics that are very similar to other types of electronicdocuments. In short, a broad knowledge of electronic documents and communication is important inunderstanding social media issues.Social media shares the characteristics of "cocktail party conversation" that has been analyzedrepeatedly by legal ethics experts over the years. See Hayes Hunt, 10 Things a Lawyer Should NeverSay in a Social Setting - Cocktail Party Chatter, From the Sidebar (June 6, 2011),http://www.fromthesidebar.com/attorney-client-privilege/cocktail-party-chatter/. Unlike cocktailparty conversation, however, the content of social media conversation can be proven by methodsunavailable for spoken conversations. The potential content of social media communications is limitless, and could conceivably affect anytype of case. A recent study by the American Academy of Matrimonial Lawyers indicated that 1 in 5divorces are caused by Facebook. Cid Carver, Facebook Divorce: 20% of Divorces Fueled By Facebook,Socialnomics (March 3, 2011)http://www.socialnomics.net/2011/03/03/1-in-5-divorces-fueled-by-facebook/.Social media evidence has been used in a number of employment practices cases. CarriePixler, Social Media Series: Using Social Media As Evidence In Lawsuits, AzBusinessMagazine (May 3,2011)http://aznow.biz/workforce/social-media-evidence-lawsuits.Social media is also being used bythe defense in bodily injury cases to demonstrate that plaintiff's claims are false or exaggerated. BrianGow, Courts Allowing Private Facebook Posts As Evidence in Lawsuits, Insurance Journal (January 27,2011),http://www.insurancejournal.com/news/national/2011/01/27/182240.htm. Because access to social media involves use of passwords, many people have a false sense of privacywith respect to social media conversations. This sense of security has been amplified by the apparentprotection of the Stored Communications Act (SCA), 18 U.S.C. §§ 2701 to 2712. In Crispin v. Audigier,717 F. Supp.2d 965 (C.D. CA 2010), a federal district court held that Facebook and My Space wereprohibited from revealing, in response to a civil subpoena, content of communications unavailable tothe general public. 18 USC § 2702(a). It should be noted that exceptions exist for certain lawenforcement and public emergency purposes, so considerations in criminal matters will be different.18 USC § 2702(b). In the Crispin case, the court remanded the case to the magistrate to determine if the content sought was indeed unavailable to the general public. Many types of social media permit auser to leave certain information open for the public to see.While electronic communication service providers can only reveal the content of social mediagenerally available to the public, they can reveal non-content information in response to civilsubpoenas. Non-content information may assist the discovery of hidden or deleted evidence. The SCA does not prohibit the persons involved in communications from revealing the content of communications, either. As a result, the content of the communications can be discovered if theinformation sought meets general standards for discovery of relevant evidence in civil matters.Indeed, some courts have even required litigants to reveal their passwords to the opposition tofacilitate discovery. See Largent v. Reed, No. 2009-1823 (Pa Ct. of Common Pleas Nov. 8, 2011),http://www.theemployerhandbook.com/Largent.pdf.Judge Walsh argues that “(only) the uninitiatedor the foolish could believe that Facebook is an online lockbox of secrets.” One judge required a partyfriend the judge in order to facilitate discover. Eric Goldman, Judge Offers to Facebook 'Friend'
Witnesses in Order to Resolve Discovery Dispute -- Barnes v. CUS Nashville, Technology & MarketingLaw Blog,http://blog.ericgoldman.org/archives/2010/06/judge_offers_to.htm. 
Hiding and Destroying Social Media Evidence: Lester v. Allied Concrete
Beginning with the Zubulake case, one of the major issues in electronic discovery has been failure toproduce responsive files and destruction of potentially responsive files. See generally Dan Willoughby,et al, Sanctions for E-Discovery Violations: By the Numbers, 60 Duke Law Journal 789 (2010),http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1487&context=dlj.  This past year, sanctions were entered against a lawyer and a client for hiding and destroying socialmedia evidence in one highly publicized case, Lester v. Allied Concrete Company,http://www.ediscoverylaw.com/uploads/file/Lester%20v%20Allied%20Concrete%20090111.pdf (Lester I)andhttp://www.ediscoverylaw.com/uploads/file/Lester%20v%20Allied%20Concrete%20Final%20Order.pdf (Lester II). An extended discussion of the case follows, both because of the lessons it can teachabout social media evidence and as an example of the potential liability faced by lawyers who dealwith social media evidence.In 2007, Jessica Lester and her husband, Isaiah Lester, were involved in a car accident with WilliamSprouse, a driver for Allied Concrete. Jessica was killed, and Isaiah suffered injuries. Mr. Lester andJessica’s parents, the Scotts, filed suit against Sprouse and Allied Concrete. Matthew Murrayrepresented Mr. Lester, and David Tafuri of Patton Boggs represented Allied and Sprouse.During the course of discovery, “Tafuri gained access to Lester’s Facebook page via Facebook message….” Lester I, slip op. at 10. Tafuri got a picture of Mr. Lester in the company of other youngadults with a beer in hand, wearing a t-shirt saying “I (heart) Hot Moms.” Tafuri then requesteddiscovery from Mr. Lester’s Facebook account.
How did Tafuri get the picture? 
The court’s opinion isn’t quite clear. Obtaining access to theFacebook page by sending or receiving a message is not possible. One interpretation is that Mr. Lestermade Tafuri a friend, which doesn’t seem to fit later facts. Someone may have either sent the pictureto Tafuri or alerted Tafuri to a picture relating to Mr. Lester that wasn’t protected from Tafuri bysecurity settings. In any event, Murray stated in court that Tafuri had hacked his client’s website. The judge sanctioned Murray for making this apparently unfounded accusation. This initial sanction points out a key aspect of social media: that private, restricted content isprotected by federal law. “Hacking,” in this case unauthorized viewing of private information withoutauthority, would have been a federal crime. The judge most likely sanctioned Murray for alleging Tafuri committed a crime without having evidence of such. When investigating social media, it isimportant for lawyers not to obtain access to social media by surreptitious means, and not to accuseother lawyers of having done so without good cause. Tafuri’s request for production dated March 25, 2009, asked for “screen print copies on the day thisrequest is signed” of all of Mr. Lester’s Facebook pages, and asked for information about the people inthe picture. Murray’s paralegal realized that the picture must have come from Lester’s Facebook page.

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