Web offers pearls of wisdom,
but also legal tangles
By Diane Karpman
Social media and other online
technology continue to present provocative issues throughout the legal system,
from the courtroom to the lawyer’s office.
Los Angeles Superior Court has
posted signs telling potential jurors not to use social media or Google. I find myself wondering
how we practiced law before Google? My office routinely Googles everyone and
everything. Google Scholar (with free online cases from all over the world) is
invaluable and always open on my computer.
In a recent unpublished case
from New Jersey, during voir dire a judge objected to plaintiffs’ counsel
"Googling" potential jurors. The courthouse had just received Wi-Fi.
I guess the judge didn't understand that meant people would actually be using
it. The Appellate Division said that it was unreasonable for the court to order
the plaintiffs’ lawyer to stop. The lawyer had the foresight to bring his
laptop to court. Being prepared and competent cannot serve as a basis for
judicial intervention in the "name of fairness or maintaining ‘a level
playing field.’" Carino v. Muenzen, No. A-5491-0871, Superior Court
of New Jersey, Aug. 30, 2010.
When a practice or technique
becomes ubiquitous in the profession, it demonstrates a potential change in
standards of conduct. Failing to routinely employ a free product — in this case
Google — that is a wealth of information (almost universally embraced) could
provide fodder in a subsequent legal malpractice claim.
Plaintiffs and defense
lawyers routinely troll Facebook, which is permissible when it comes to public user
content. However, several ethics opinions condemn pretextual “friending” to get
access to private content. (Philadelphia, 2009‑02; New York State Bar
Assoc. Opinion #843 (09/10/2010)). More discovery requests demand access to
private portions of Facebook. It is quite possible that some clients have
duplicitous private lives.
New York just issued a
strange opinion involving a lawyer advising clients about social media. The
opinion said the lawyer could advise a client to "take down" certain
information from their Facebook account, provided that "such removal does
not violate the substantive law regarding destruction or spoliation of
evidence." (NYCLA #745, July 2, 2013) The opinion does note that
applicable "state or federal law makes it an offense to destroy material
for the purpose of defeating its availability in a pending or reasonably
foreseeable proceeding." In other states, the ambiguous term "take
down" might be construed as suppression of evidence.
You don't have to be an
Internet genius to know that the "Wayback Machine" is an online Web page
archiving service, with directions for finding deleted Facebook pages among the
240 billion pages posted since 1996. In other words, once it's on the Internet,
it is out there and probably will be found. There are some ethics mavens who
believe that advising a client to "take down" something suggests you
too may become a part of the litigation as a witness.
You can advise clients what
to post and how to use social media, but don’t advise anyone to “take down”
information. You may already have policies regarding social media and
employees. The cleanest way to handle these messy issues is at the inception of
the relationship in the retainer. Ira Spiro of Spiro Moore LLP has an effective
clause in his fee agreement:
“Clients
must not mention anything about the lawsuit on Facebook or any other social
media or website. The same goes for the events that led to the lawsuit, such as
clients' employment (accident, etc.). Clients must not place anything on Facebook
or any other social media or website that would be embarrassing or would be
frowned on by a judge or a jury.”
Last night (while desperate
to find a closing for this article beyond deadline) Aaron Sorkin’s television
hit “Newsroom” came on. The reporters need to find certain tweets from 2009, in
the Waziristan region. One young, bright reporter says, “Oh sure, use Topsy” (an
online tool that searches content published on Twitter and the Web, sorted by
relevance or date). The reporter cautions that they will have to get someone to
interpret Pashto, the local language. Sorkin merely borrowed from real-life
journalistic practices: CNN has several reporters dedicated to spotting Twitter trends, which they monitor 24/7.
Just another reason to
remember that information on the Web often lives forever. When tweets in Pashto
from Waziristan, Pakistan from 2009 can be located there is simply nowhere to
hide.
Legal ethics expert Diane Karpman can be reached at 310-887-3900 or at karpethics@aol.com