The Law of Friending
Social networking sites like Facebook, Twitter, MySpace, etc. continue to grow. These sites have tools to maintain privacy. But is any online content truly private?
On Facebook, access to one’s information comes via a process called “friending”. It is important that you “friend” only people you know. What is to stop a lawyer from “friending” an opposing party in order to gather information? Ethics? Here’s proof that this actually happens.
If you indiscriminately accept “friends”, you may open the door to a critical loss of your privacy.
If you use social media, you should never post anything about any litigation you are involved in. This includes statements about your injuries and photographs showing you engaged in strenuous exercise or activities that make you look bad in some other way.
You should set your privacy settings so that only your friends can view your information. You can be sure that opposing counsel and the other insurance company’s representatives are going to look for everything about you on the Internet that they can use against you. Try Googling your name. See what comes up. If you find things that could be problematic, let your lawyer know.
Smart lawyers make use of Google and other search tools, for many reasons. If a litigant has posted anything relevant to the litigation, it may be admissible as evidence. Further, your online content will allow the opposing attorney into your world. This may give her insights into your personality that can work against you.
Information posted on social media sites that is or may be relevant to a pending matter is potentially discoverable, and admissible in court as evidence. Just as a defendant may not destroy evidence, neither may a plaintiff. Deleting the information on a social media website is akin to destroying evidence. Imagine if a defendant in one of your cases had “inappropriate” information in a file and deleted it.
Simply because the information is electronic or stored online rather than in paper form does not change a lawyer’s obligation to assure that evidence be preserved, regardless of whether it is favorable or unfavorable to a client. If you doubt the seriousness of the issue, consider the plight of the past-president of the Virginia Trial Lawyers Association
I specifically advise clients about social media, and recommended that all lawyers do the same. Once the “evidence” is on the site though, a lawyer cannot counsel a client to destroy it. The best thing is to advise the client not to post anything else until the case is concluded and to make the page non-public.
You should never post anything on the Internet that could one day embarrass you. Smart employers Google prospective employees. If they find inappropriate photos or words in your name, you are unlikely to get the job.
Now more than ever you must watch how you and family members conduct yourselves online. All parents should teach their children that what goes online never really goes away.