July 4, 2019
Social media is everywhere. Everyone uses it, including those in the legal profession. Social media ethics for lawyers must be staunchly adhered to. Because the lines between personal and professional tend to vary in shades of gray when it comes to social media, attorneys and other legal professionals must tread carefully. There are times when social media can be used to your advantage. By the same token, there are also times when using social media can create a serious problem.
When it comes to discovery, social media posts are easily discovered if a post has been shared publicly. A discovery request can be made if an attorney knows approximately where to look. However, making a blanket social media discovery request may not be in your best interest. So instead of generalizing your request, be as detailed as possible and specify exactly what you are looking for.
The right to privacy is one of the biggest concerns in social media. While it isn’t much of an issue if a social media account is set to “public”, having an account that has been set to “private” dramatically restricts accessibility. The fact is, sharing information within a group of any kind can have an effect on a person’s expectation of privacy. Information contained in these “private” accounts can still be gained through discovery requests, so lawyers should counsel their clients accordingly.
All information gained from an online search, including a search of social media, must be authenticated. In order to be admissible in court, the information must meet what is referred to as evidentiary standards. Social discovery tools, screenshots, and other means of securing the information must be properly used by lawyers so that the information collected can be authenticated.
Social media can be a common cause of mistrials for many reasons. The jury must be instructed not to discuss the case on social media. In some cases, jurors may be instructed not to use social media at all. Attorneys should also be careful while researching jurors on social media because even this has its drawbacks. Passive research may be permitted, but direct interaction is strictly forbidden.
When it comes to the law and social media ethics, lawyers, attorneys, and other legal professionals must be extremely careful when doing research. Ethics are in place for a reason, and social media can sometimes blur the lines. In some cases, if there is a question as to whether or not a practice is ethical, it’s best to err on the side of caution and avoid social media altogether.
Colleen Jilio-Ryan is the Owner of Jilio-Ryan, a Tustin based premiere law consulting firm. The firm along with its certified court reporters is dedicated to providing the highest quality deposition and litigation services to attorneys, insurance companies, and corporations. With her sincere efforts, Colleen is committed to meeting the highest standards of the legal industry, and is an industry leader when it comes to on-time court reporting and deposition scheduling.