I recently taught a group of newly-minted lawyers about “Practicing in the Digital Age: Navigating Social Media” at Massachusetts’ new Practicing With Professionalism course. This is the first required CLE in Massachusetts, and it is targeted at new practitioners. But, this particular topic should, in all honesty, be required for all types of practitioners. It seems that lawyers are just beginning to realize that what we put on the Internet is by no means private (even if you use your “privacy settings”) and is completely permanent.
In a series of incredible graphics, Matt McKeon shows us just how much more personal data people are generally sharing on Facebook. This doesn’t take into account Twitter, LinkedIn, or any other social networking site that you, or your clients, use. So as a baseline, we need to be very aware of the fact that we as attorneys, and our clients, have a lot of available and searchable information online.
When initiating a case, it is important to talk about what types of information your client has disclosed, and generally discloses, online and carefully consider whether or not their online presence will have an impact on their case. Of course, you never know what may end up being relevant.
It’s also important at the beginning of a relationship with a client to set out clear standards and expectations regarding the use of social media during the pendency of any type of case. More and more, judges are taking the position that information disclosed on a social networking site, regardless of privacy settings, is not private. Considering that people generally have hundreds, if not thousands, of Facebook friends, this is not an unreasonable legal position for a judge to take.
Advise your clients that anything posted online creates evidence in the public domain.
It’s also important, both for ourselves and our clients, to understand that even information that we share in a circumspect manner can be taken, shared, copied, re-posted and generally plastered all over the Internet in an extremely short period of time. Make sure you, and also your clients, understand that whatever you post may be reposted elsewhere. This piece in the Washington Post provides a great primer on Facebook’s privacy settings and some other important considerations.
I suggest drafting a social media advisory, including all relevant information to your clients, with clear directives regarding their use of social media during the pendency of your case.
Understanding that information posted online is no longer under your control is an extremely important and powerful concept. Take this much-discussed case out of Florida. A man won a lawsuit against his former employer and was subject to a confidentiality agreement. In the days before social media, the fact that he shared the settlement information with his daughter would likely have been irrelevant and never discovered. This man’s daughter, however, posted a message to Facebook, which ended up in the hands of this man’s former employer, circulated among that community, and ultimately ended up in the hands of attorneys and judges. The Facebook post was evidence that he had violated confidentiality and he lost his settlement funds. $80,000.00 worth.
Similarly, there are many “Silent Listeners” on the Internet. Although people have generally begun to increase their privacy settings on Facebook, and therefore assume that less information is available about themselves online, the opposite is, in fact, true. We are unwittingly disclosing information to third-party apps and advertisers. And, once information is disclosed, it is very difficult to take it back.
I’m not advocating that we all avoid the Internet. I’m an avid user of Facebook and Twitter and I blog frequently. But, it is important to understand privacy, confidentiality and disclosure on the Internet so you aren’t caught unaware.
Featured image: “Gone Viral Sign” from Shutterstock.