Based upon my consulting experiences and CLE presentations in recent years, attorneys are still all over the map when it comes to having an understanding of what social media is all about. There are significant numbers who have embraced social media. These attorneys really do get it and some at a level far more advanced then my own. Others are perhaps best described as having an awareness of social media, tolerate its presence, and try not to be bothered by it. Then there are the select few who want nothing to do with it and it is to this group that I direct this post. For the rest of you, stay with this. This isn’t all about being in denial.
While it’s tempting to focus on topics along the lines of how the failure to use social media as an investigative research tool could lead to a viable malpractice claim, trying to identify the ethical traps and security risks that come with a social media presence, or even discussing the pros and cons of using social media as a marketing tool; I am going to go in a different direction. I simply posit that a decision by an attorney to remain naïve and in the dark about social media can be a serious misstep. An attorney can no longer remain oblivious to its existence, simply choose not to participate, or block all access at the firm in the name of productivity.
Why? Think about it. When the number of people who use Facebook now exceeds one billion it seems rather obvious. Many of your clients are using social media and, as their lawyer, you must have a basic understanding of what social media is all about in order to see that they are properly advised. When it comes to social media, we’re past the point where ignorance is bliss. Ignorance could create a serious problem for both you and your clients and that’s simply not acceptable.
Consider this, do all of your clients understand how the attorney/client privilege is theirs to lose? What would happen if a client posted the text of various email exchanges between you and he on Facebook just to keep friends and family up to speed? (And yes this has happened.) How about a personal injury or work comp client posting photos of a recent trip to Universal Studios on Flickr? Man did she really like those roller coasters! You are the lawyer and as such would be well advised to counsel your clients as to the ramifications of participating in social media during the course of representation. Set the ground rules and educate them as to possible consequences: and no, telling them to just delete everything isn’t an option. Personally I call that spoliation.
For example, I would want to make certain that my litigation clients should assume that anything that gets posted to the web will be viewed by the other side and may even end up on a big screen in the courtroom for everyone to see. This might even include reminding these clients to make certain that other family members are aware of this possibility so that they don’t post photos or updates that could create a problem. After all, the circle of friends that any one of us has means that all sorts of circuitous avenues exist for the unintended consequence of someone else discovering something one never intended to be exposed but somehow it ended up on a social media site. It would also be advisable to instruct your clients to not use someone else’s computer to communicate with you, particularly if they might be tempted to use a work email address and a computer or smart phone owned by their employer.
Understand that communications that occur through social media sites are in essence recorded and preserved and once out there they are practically impossible to ever recall and erase. As lawyers, we don’t like unexpected surprises so why risk it? An attorney is a counselor of the law. Really what I am suggesting here is to have you consider what being an effective counselor at law means in this age of social networking on the Internet. Denial is no longer an option. One simply cannot bury one’s head in the sand and say I want nothing to do with social media. That would be like pretending the United States doesn’t exist. Oh, and by the way, the population of the United States is far less than the number of people on Facebook several times over. Get it? If you’re one who’s late to this game, it’s past time to get up to speed.