This article by Dan Pinnington (VP, Claims Prevention & Stakeholder Relations at LAWPRO) originally appeared in the July 20 issue of The Lawyers Weekly published by LexisNexis Canada Inc.
Family law lawyers should keep in mind that their 20 and 30-something clients grew up with technology. They live online 7/24. Facebook posts, YouTube videos, Instagram pictures, texting and tweeting are intertwined in the fabric of their daily lives. Young people also tend to be very open and will post personal and intimate details of almost every activity online, regardless of whether it is in the office, the kitchen, the bedroom or Vegas.
Needless to say, some of this online information will be relevant evidence on family law matters.
Lawyers and their clients need to know how to handle social networking information and the dangers inherent with it. Here are nine rules they should follow:
1. There are really no secrets on social media sites
The amount of information other people see on social media sites is controlled by privacy settings or permissions. While the sharing levels have different names on different sites, they are some variation of private, friends, friends of friends or everyone. Practically speaking, it is very hard to lock things down as default permissions usually favour widespread sharing. Assume that most clients will not appreciate how broadly the information they post online is shared.
To lock things down, encourage your clients check their privacy settings for all the social networking tools they use. The Always Up-to-Date Guide to Managing Your Facebook Privacy post on the LifeHacker blog can help with locking down a Facebook page. The MyPermissions.org site can help with other sites.
2. Friends means friends forever, or at least friends of friends forever
“Unfriending” the ex is one of first things people do after a separation. Unfortunately, unfriending may not prevent the ex from accessing posted information. Although direct sharing with the ex is stopped, an unfriended person may still have access as a friend of a friend or through applications that share information. Use the resources cited in the previous rule to better lock things down.
3. Give clients a “don’t be stupid on social media” warning
Most clients can’t help themselves online – their real personalities and actions will shine through in HD. Social media will be better than a lie detector or cross examination at finding the truth. For this reason, you need to firmly give your clients a warning that is a variation of something they have heard on television 10 million times: “Anything you say or do on Facebook can and will be used against you in a court of law.”
And, if you get the slightest hint that your client is stretching, bending or hiding the truth, ask more questions and dig deeper. You don’t want be called out by the other side or a judge.
4. Don’t use social networking tools for lawyer/client communications
You may find your clients wanting to communicate with you with Facebook messages or chat, Twitter DMs or LinkedIn messages. Don’t do it. You can’t assume these communications will be private. Tell your clients to use a private email address instead.
5. Be aware of electronic evidence and e-discovery obligations
Electronic stored information (ESI), including posts on social networking sites, will often be relevant evidence on family law matters. Family law lawyers need to understand this and be familiar with the obligations they have to identify, find, preserve and produce relevant ESI.
Proportionality is very important in family law matters – you won’t have the time or a budget for an in-depth e-discovery investigation. To avoid taxing the court, annoying the judge and incurring unnecessary expenses, work to get a smaller selection of emails or sample posts that are truly helpful in proving the key facts you need to argue your position. Five really good emails or post are better than 50 mediocre ones – and the judge is more likely to carefully read them.
And remember, a client that deletes information on a Facebook page could be found to have destroyed evidence. Be careful not to be seen to be counselling or acquiescing to your client taking steps to destroy evidence.
6. Social media can prove interesting things
Social media can give you far more than just nasty comments and embarrassing pictures. It may provide evidence to establish the existence of denied relationships, to show poor parenting skills or judgement, to support or refute an alibi, to show capacity to work (e.g., someone with an allegedly sore back out bungee jumping or dancing) or to show smoking or the use of other substances not normally associated with someone who is a law abiding citizen and exemplary patent. In one case, a husband who swore in an affidavit that he had lost a valuable necklace, shortly thereafter posted a picture on Facebook of his new girlfriend wearing it on New Years’ eve. Oops!
7. All the above comments apply to everyone else that touches a case
Almost everyone is on social media, so all the above comments apply to everyone else involved in a family law matter. This includes the client’s family members and friends, access drivers and supervisors, as well as social workers.
8. Family lawyers shouldn’t be friends with clients on Facebook
Facebook and the other social media sites are wonderful business development tools. They make it easy to reach out and connect with all sorts of existing and potential clients. However, for some areas of the law – and family is one of them – you really can’t be friends with a client given the personal nature of the information that is typically shared on Facebook pages.
9. You can’t be anonymous on the web
It takes seconds to create a Facebook or other social networking account using a fake name. It is also easy to post comments using a name other than your real name. Many people will post nasty comments while hiding behind the shroud of anonymity. Don’t be tempted to do this – and make sure you clients don’t do it either. Through legal process, computer forensics or just digging around, you can often figure out who posted anonymous content. You – and your clients – don’t want to be caught doing this. It’s also not proper for a lawyer to pretend to be someone else to friend a person to get access to information in a social media account.
Facebook Timeline is probably the biggest thing that has happened to family law since the no-fault divorce. What is the most common way cheaters are now caught? Forgetting to logout of their Facebook page. Facebook and similar social networking tools have introduced interesting new communication and evidentiary challenges for family law lawyers. Use the above rules to keep you and your clients out of trouble.