Relevant. Affordable. Actionable.
Maybe it’s just me; but I fail to understand the devotion so many have to social media, especially something like TikTok. Speaking personally, I find it incredibly boring. I will also admit I’m well aware that I am in the minority on this one because according to Priori Data 72% of adults in the US use at least one social media platform. However, speaking as a risk manager, this reality concerns me because there will be times when people will be participating in the social media space at the same time they are being represented by a lawyer. That’s problematic and here’s why.
A single post, tweet, or comment can jeopardize a case, breach confidentiality, or contradict legal strategies, which begs this question. Are your clients all aware of these potential consequences? From the client’s perspective, whose fault do you think it would be if a client unintentionally shares information that can be used against her in litigation, posts details about a legal dispute that ends up waiving the attorney-client privilege, says something that contradicts a legal claim or testimony, or is surprised when opposing counsel introduces social media posts as evidence? Before you answer, remember who has hired who.
Is this a problem you should be concerned about? Absolutely! More than a few folks have already shared what they discussed with their attorney on a variety of social media sites. Given that younger generations seem to have stopped caring about privacy at all, I suspect the frequency of such missteps will only continue to grow. Of course, you can’t and shouldn’t have to continuously monitor what your clients do online; but you mustn’t forget what being in the role of a lawyer means. Among other things, it means you’re to reasonably consult with clients about the means by which the client’s objectives are to be accomplished and you are to explain a matter to the extent reasonably necessary to permit a client to make informed decisions regarding the representation. (See ABA Model Rule 1.4 Communications.) Are you certain your clients completely understand the risks that come with participating on social media sites or are you running with assumptions?
Always make sure your clients are aware of the dangers of social media participation while their legal matter is pending. They need to know how their own actions or inactions outside of your law office might impact their case. Again, you are the lawyer, and your clients expect you to tell them all that they need to know, which in this day and age includes making sure that they don’t do stupid when it comes to participating in the social media space during the course of representation. The best place to start is with a clear warning included in your engagement agreements. To help get you started, consider using the following sample language tailored to meet the needs of your practice:
Social Media and Communication Warning:
You are advised to use extreme caution when discussing or posting about your legal matter on any social media platform, website, blog, or public forum. Any statements, photographs, or other content you share may be used as evidence by opposing parties and could negatively impact your case. You should refrain from discussing case details, legal strategy, or related matters online. Additionally, do not delete or modify existing posts without consulting our firm, as doing so may be considered spoliation of evidence. If you have any questions about social media use, please discuss them with us before posting.
Further, to avoid any unintentional waiver of the attorney-client privilege, we also advise you to refrain from communicating with us on any device provided by your employer or any computer, smart phone, or other device that is shared with someone else. In addition, when communicating with us, do not use your work email address or a shared email account. You should only use a private email account that is password protected and only accessed from your personal smart phone or computer.
The use of this what some have come to call the “don’t do stupid warning” can be quite beneficial. Just don’t rely on this type of notice alone. In the end client education, sometimes coupled with periodic reminders, will also be necessary because active participation in the social media space can be a hard habit to break.
Since 1998, Mark Bassingthwaighte, Esq. has been a Risk Manager with ALPS, an attorney’s professional liability insurance carrier. In his tenure with the company, Mr. Bassingthwaighte has conducted over 1200 law firm risk management assessment visits, presented over 600 continuing legal education seminars throughout the United States, and written extensively on risk management, ethics, and technology. Mr. Bassingthwaighte is a member of the State Bar of Montana as well as the American Bar Association where he currently sits on the ABA Center for Professional Responsibility’s Conference Planning Committee. He received his J.D. from Drake University Law School.
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