We know that use of Facebook and other social media platforms can result in communication similar to any other conversation in the eyes of the court. But we did not really understand the full impact of this social media platform when it first came out. So what happens when, in the early days, a legal office reaches out to the other side of a lawsuit, gains access as a “friend” to view that party’s private information, and starts to monitor their postings?
That was the question in a recent case. Although the case is out of New Jersey, it provides an interesting example applicable in almost any state. It involves an attorney who allegedly asked his paralegal to monitor the Facebook account of a man who his client was suing. The paralegal asked the man to accept her as a friend and began to monitor his account. The man filed a complaint that led to an official Disciplinary Review when he realized that a representative of the attorney had falsely posed as a friend to gain access to his private information.
What was the issue?
Attorneys are not allowed to communicate directly or indirectly with a represented party about the subject of the representation without the consent of their attorney.
What does this mean for the future?
In this case, the court dismissed the disciplinary charges against the attorney. The Special Master went on to state that this would not be the norm. That attorneys need to “acquaint themselves with the nature of social media” and guide themselves and their staff about what is acceptable communication. This likely applies to future platforms as well as current, known social media sites.
Violations are unacceptable and can do serious harm to their clients’ interests.
It also states that although in 2008 a good faith misunderstand may be an acceptable defense to these allegations, the same is not true today. The defense of ignorance, the court explains, will not be a safe haven. It then also makes the point to clarify that attorneys are responsible for the conduct of non-attorney hires, like paralegals.