Social networking through sites like Facebook and Twitter has changed the way individuals and businesses interact with one another. It has also changed the way you and your lawyer investigate claimants, plaintiffs, witnesses, and even jurors.
Potential Legal Consequences of Social Media
- Security Concerns
- Organizations allowing employees to use social media at work is directly at risk to malware attacks which could steal personal information or trade secrets. The company could have to provide notice of the breach and face lawsuits or regulatory actions arising out of the breach. Other security concerns include liability and risk of confidential information leaking.
- Discrimination/Harassment
- Social media posts can be used as evidence. If employees, particularly managers, make discriminatory comments or use social media to harass employees in a protected class, the company can be held liable.
- Intellectual Property
- Employees must have a clear understanding of exactly what is confidential such as trade secrets and financial information.
- Copyright and Fair Use
- Some employees use social media as part of their job. These employees need to understand the limits of copyright, how to properly use an excerpt and how to give attribution.
- Privacy Policy
- In order to get new customers, many companies have email subscribers. If you have subscribers or followers, it is important to have a privacy policy that states what information is collected and how it gets used.
- Defamation
- Defamation is publishing something untrue about someone that harms their reputation. If something is posted by an employee on your website or company page, you will probably be held liable for it.
Social Networking and Litigation
Can I investigate online?
Under ABA Rule 1.1, a lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary. A lawyer, to maintain the requisite knowledge and skill, shall keep abreast of changes in the law and its practice. This means changes in the law relating to what is admissible and permissible with regards to social media activity.
May I friend request a plaintiff?
According to ABA Rule 4.2, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.
Other friend request rules:
- Requesting a co-defendant
- May I accept a friend request from an represented party?
- No. See ABA Rule 4.2, Comment 3
- Comment 3: the Rule applies even though the represented person initiates or consents to the communication.
- May I tell an Associate to do it for me?
- No. A lawyer shall be responsible for another lawyer’s violation of the Rules of Professional Conduct if the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved. See ABA Rule 5.1
- May I tell a secretary, paralegal or assistant to do it?
- No. A lawyer shall be responsible for another lawyer’s violation of the Rules of Professional Conduct if the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved.
- See ABA Rule 5.3: Responsibilities Regarding Non-lawyer Assistant.