The Impact of Social Media on the Practice of Law
By Alison A. Cave and Renée DeMoss
Social media continues to take the world by storm as millions of people communicate and network on Facebook, Twitter, Instagram, LinkedIn, YouTube and individual blogs every day. Its ubiquitous reach now extends to the practice of law, and has led to an explosion of state and federal court opinions involving some aspect of social media.1
Oklahoma lawyers cannot afford to ignore the impact of social media on their practices. Older lawyers who prefer not to engage stand to lose clients through online marketing and face sanctions or even malpractice claims by failing to keep up. Younger lawyers well-versed in the ways of online communications may be so cocky that they run afoul of ethical issues that can likewise lead to sanctions.
While this article seeks to bring to the practitioner’s attention the wave of new legal issues created by social media, it is only possible to scratch the surface. Oklahoma attorneys must educate themselves on the very real benefits, dangers and obligations social media has introduced to the practice of law.
SOCIAL MEDIA AND LITIGATION
The flood of social media platforms has had a particularly strong impact on litigation practice, from jurisdiction to service of process to jury selection to trial preparation to evidentiary issues.2 A very recent Oklahoma Supreme Court case illustrates this impact.
Notice through Social Media
In a case decided on Oct. 14, 2014, the Oklahoma Supreme Court considered whether a posting on Facebook constituted notice sufficient to advise a biological father that proceedings had been filed to terminate his parental rights.3 Presuming that the opinion survives further challenge or revision, if any, the court has held that under the circumstances of the case, such notice was insufficient.
Although not in a dating relationship, the parties had engaged in sexual intercourse several times over a period of approximately three months. They saw each other only once after their last sexual encounter, about six weeks later. There was no discussion at that time of whether the woman was pregnant or could be pregnant.
At some point before the birth, the mother did send the father a Facebook message informing him of the pregnancy and that the baby would be given up for adoption. She did not take any other steps to notify him, although it appeared she could have done so.
The father testified at a hearing to terminate his rights that he did not know how old the Facebook message she sent was when he actually saw it and read it. He further testified that he did not know of the child until about a week following the birth, and that he subsequently visited the child and provided financial support.
The court held that notice through Facebook alone did not meet constitutional due process requirements, as it did not give the biological father adequate notice, reasonably calculated under the circumstances, to provide him the opportunity to advocate his position. Deeming Facebook to be “an unreliable method of communication,” the majority noted that the fact an individual has a Facebook account does not mean that he or she checks the account regularly, or that the account is configured to provide notification of unread messages.
The court found that under the circumstances of this case, Facebook notification was a “mere gesture,” not reasonably certain to inform as required by the due process clauses of the U.S. and Oklahoma Constitutions.
Social Media and the Jury
In the litigation world, social media can be a boon for lawyers seeking information about the jurors who will decide their clients’ fates. Even a cursory examination of a prospective juror’s public Facebook page or public Twitter feed can expose helpful material which previously was tough to elicit through voir dire questioning. Attitudes and opinions advocated in social media can help attorneys make decisions about whom to strike during jury selection, and help them mold and outline arguments to make to jurors during trial.
In fact, the proliferation of social media has made its use a virtual requirement for jury and trial preparation. In a recent Missouri medical malpractice case, a prospective juror was asked whether she had ever been a party in a lawsuit.4 She did not respond and was seated as a juror. After the jury of which she was a member entered a verdict for defendant, plaintiff’s counsel searched the Missouri online court system and discovered she had been a defendant in three previous lawsuits. Plaintiff’s request for a new trial was granted, and the Missouri Supreme Court affirmed on interlocutory appeal. The court noted that attorneys have an obligation to perform juror research before a jury is seated. It reprimanded the plaintiff’s counsel for not doing so, but upheld the request for a new trial because no authority existed at the time of trial requiring an attorney to perform online research about prospective jurors. Shortly after issuing its opinion, however, the court incorporated an obligation into Missouri Supreme Court Rule 69.025, which now requires attorneys to review the Missouri online system regarding prospective jurors before a jury is empaneled.
Practice Note: Attorneys need to monitor jurors’ social media postings after a jury is empaneled to ensure that they do not breach their oaths or instructions by providing details of the cases they are deciding. Additionally, attorneys should ask trial judges to give a detailed jury instruction regarding social media use, and request the instruction be given periodically throughout the trial. The Federal Judicial Committee on Court Administration and Case Management has a model instruction on jury social media use that can be used as a guide.5
Social Media in Discovery and Evidence
Social media sites can provide a wealth of information about an individual’s conduct, events, whereabouts and other private data. It is exceptionally valuable for locating witnesses or parties who are dodging service of process.
The use of material gathered from social media has also become a common practice in discovery and witness examination, including in Oklahoma courts.6 Witnesses or parties can be impeached through their social media postings, or on a social media site disclose facts that completely destroy their testimony, stance or case claims, even if they thought the posted material was private, so the posting, use and even deletion of social media material must be carefully considered.7
In a Kansas case decided earlier this year, the defendant was convicted of aggravated battery and criminal threat.8 His ex-wife testified he broke into her house and assaulted her, leaving multiple injuries including a broken jaw, broken eye socket and broken nose. The state presented at trial, over the defendant’s objection, evidence of entries made on his Facebook page describing what he was going to do his ex-wife, which included causing injuries consistent with those she actually suffered. The defendant admitted the Facebook page was his, but contended that he did not make the entries. He appealed his conviction on the grounds that the trial court improperly admitted the printout of his Facebook page without proper authentication. The court found that the admission on the Facebook page was sufficient to authenticate the page, and the evidence on the page used to convict him was admissible.9
Practice Note: According to Rule 8.4 of the Oklahoma Rules of Professional Conduct, it is professional misconduct for an attorney to engage in conduct involving dishonesty, fraud, deceit or misrepresentation. Even though courts are beginning to require attorneys or their agents to review social media sites, an attorney can potentially violate Rule 8.4 if he goes online and tries to access a person’s information by asking to be that person’s “friend.”
SOCIAL MEDIA MARKETING
Attorney advertising and marketing has also gone viral. As with every other product and service, consumers seeking lawyers use online resources at some point in the process. In fact, the number of consumers using online re-sources as their means of finding legal counsel is skyrocketing.10 Oklahoma attorneys need to be familiar with the new technology tools that are the yellow pages of the future, and how to use them.
People now surf the web to choose all types of professionals, and websites for law firms and attorneys have become a necessity. Further, with more people relying solely on smart phones to surf the web, attorneys must now optimize their websites to provide for mobile searches. Websites are also a great resource to post educational information to reach the public.
Yelp, Facebook and Twitter
Yelp is another website which is frequently viewed by people looking for recommendations with regard to professionals. Founded in 2004, Yelp has approximately 138 million visitors monthly, according to its website. Yelp allows businesses to set up free accounts to post photos and messages, and consumers can post reviews about various businesses. Facebook and Twitter are other social media sites where attorneys can set up accounts, post news or education articles and establish a presence online.
This is a website for professionals, and through it attorneys can connect with other professionals. Attorneys can join “groups” such as law school alumni groups to participate in discussions on specific legal issues or for referral sources. LinkedIn is also a good site to create and post relevant information to contacts, promote blog posts and provide links to blogs on the LinkedIn status update.
YouTube and Blogs
YouTube is a website for posting videos. Attorneys can create videos which attract and educate clients, and showcase areas of practice. Blogs are essentially legal articles which can also be shown on a website to communicate information about the areas of practice. Blogs should be updated frequently.
Practice Note: Attorneys should be aware that any material they post online is ripe for review by not only potential clients, but others surfing the web. The case of Kansas City lawyer Stephen Bough, who is currently being considered by the Senate Judiciary Committee for a federal judgeship in the Western District of Missouri, provides a valuable lesson. Mr. Bough created a blog and filled it with posts that were political in nature. He once responded to a comment on his blog by stating, “You and the 3 other folks who read this blog will agree I shouldn’t be a judge.” Although his last posts were in 2009, including his ill-advised post that perhaps he shouldn’t be a judge, those posts remained online long after, and will likely be discussion material in Mr. Boyle’s upcoming 2014 confirmation hearing.11
The moral of the story is that before posting on any site, be sure the information or opinion you are putting online is something you don’t mind the world seeing.
ONLINE MANAGEMENT OF ATTORNEY REPUTATION
Through social media, complaints about attorneys and the quality of their services can spread rapidly, and attorneys need to be prepared to react to adverse comments posted by upset clients. If something negative surfaces, it must be handled quickly and effectively to avoid escalation. Online reputation management includes checking all posts concerning an attorney and law firm.
How does an attorney or law firm check for bad reviews? Simple searches on Google, Bing and Yahoo should reveal comments being posted. Free alerts can be set up on Google and Yahoo for notifications when new comments are posted, and Twitter is searchable as well.
How should a law firm respond to adverse comments? Again, resist the urge to respond immediately, and never post information which could reveal client confidentiality. Remember also that it is never a good approach to bad mouth a client. Consider a recent Florida bar disciplinary matter.12 An attorney who represented a client in an immigration matter criticized the client in court e-filings and other online sites. Four days before a hearing for the client, the attorney filed a motion to withdraw. She stated in the motion filed online that her client’s check to pay for legal services had been returned for insufficient funds, he had been properly convicted of grand theft, and he had robbed people in the Romanian community. The Florida Supreme Court found that the attorney’s filings violated bar rules on client confidentiality, and that she had engaged in conduct prejudicial to the administration of justice. The disparaging remarks were needless, harmful and could cause the public to lose faith in the legal profession. The attorney was suspended from practice for a year.
ETHICAL CONCERNS ON SOCIAL MEDIA USE
Posting information on the Internet, either through Facebook, Twitter or any other social media, has a number of ethical considerations. Just a few potential violations include breach of the attorney-client relationship, unauthorized practice of law, improper advertising and obtaining information through friending someone in a manner which would involve deceit. In addition to the aforementioned Rule 8.4, the following Oklahoma Rules of Professional Conduct should be considered.
Rule 1.6 provides an attorney shall not reveal information relating to the representation of a client. An attorney should therefore be mindful that simply by posting what he or she is doing for an identified client at any particular point in the day, such as attending a hearing, could easily violate this rule. In addition to potentially breaching attorney-client confidentiality, the posting attorney may also be damaging the client’s case, if opposing counsel is reading the posts as well.
Rule 5.5 provides that an attorney shall not practice law in a jurisdiction in which the attorney is not licensed. Also, be aware when responding to posts in various social media outlets that an attorney’s communications can inadvertently create an attorney-client relationship. If an attorney gives advice or provides information online which could be construed as legal services, and/or as practicing law in a state in which he is not licensed, he opens himself up to claims of unauthorized practice of law.
Rule 7.1 and Rule 7.2 provide specific requirements that can pose problems. Lawyers may not make false or misleading statements about themselves or their services in advertising, and lawyers must provide identifying information, including name and address, in posts regarding their services. A lawyer who posts on social media sites about winning a million-dollar verdict, for example, may violate these rules in a number of ways, such as failing to provide all the necessary identifying information, or implying the lawyer was the major player in the lawsuit when he only had a small role. Finally, lawyers should beware of posting personal testimonials and endorsements which could violate rules against improperly holding themselves out as specialists in a particular area of law, if they are not specialists in that area.
New legal and ethical issues involving social media are arising every day. Oklahoma attorneys must be diligent in reviewing these issues and adapting their practices so they can utilize social media tools appropriately and ethically.
1. From 2012 to 2013, the number of court opinions involving social media increased by over 100 percent, including references to Facebook, Twitter, LinkedIn, Google+ and other sites. See John Patzakis & Barry Murphy, “Social Media Caselaw Update: The Acceleration Continues,” Next Generation eDiscovery Law & Tech Blog (Oct. 4, 2013 8:42 AM), http://blog.x1discovery.com.
2. See, e.g., FTC v. Pecon Software Ltd., 2013 WL 5288897, *3 (S.D.N.Y. Sept. 18, 2013) (court permitted service of process of complaint and summons by email and Facebook); Rios v. Ferguson, 978 A.2d 592, 601 (Conn. Super. Ct. 2008) (holding that defendant’s “posting of the video [on YouTube] constitutes sufficient ‘minimum contacts’ to justify personal jurisdiction over him” even with no allegation that defendant ever stepped foot in the state).
3. In Re Adoption of K.P.M.A., 2014 OK 85, ____P.3d____ (opinion issued on Oct. 14, 2014). At the time that this issue of the Oklahoma Bar Journal went to press, the time to seek rehearing in the case had not expired and the opinion remained subject to further revision or withdrawal by the Oklahoma Supreme Court.
4. Johnson v. McCullough, 306 S.W.3d 551 (Mo. 2010).
5. See “Revised Jury Instructions Hope to deter Juror Use of Social Media During Trial,” United States Courts (Aug. 21, 2012), http://news.uscourts.gov/revised-jury-instructions-hope-deter-juror-use-social-media-during-trial.
6. Bosh v. Cherokee County Governmental Building Authority, 2013 WL 6150799, *4 (E.D. Okla., Nov. 22, 2013) (court found information shared or transmitted through Facebook social media account regarding case allegations to be encompassed within discovery requests and discoverable); Pre-Paid Legal Services, Inc. v. Cahill, 924 F. Supp. 2d 1281, 1291-92 (E.D. Okla. 2012) (considering Facebook posts as evidence); U.S. v. Langford, 2013 WL 6055490, *4 (N.D. Okla. Nov. 15, 2013) (considering Facebook posts as evidence).
7. See, eg, Tompkins v. Detroit Metro. Airport, 278 F.R.D. 387, 388 (E.D. Mich. 2012) (“[M]aterial posted on a ‘private’ Facebook page, that is accessible to a selected group of recipients but not available for viewing by the general public, is generally not privileged, nor is it protected by common law or civil law notions of privacy.”); EEOC v. Storage Mgmt., LLC, 270 F.R.D. 430, 434 (S.D. Ind. 2010) (“[A] person’s expectation and intent that her communications be maintained as private is not a legitimate basis for shielding those [relevant] communications from discovery.”); Hosch v. BAE Systems Information Solutions, Inc., 2014 WL 1681694, *1-*2 (E.D. Va. 2014) (dismissing plaintiff’s claims with prejudice in part because plaintiff deleted social media information from his electronic device); Hawkins v. College of Charleston, 2013 WL 6050324 (D.S.C. Nov. 15, 2013) (imposing spoliation sanctions on a party who deleted Facebook postings).
8. State v. Jones, 318 P.3d 1020 (Kan. 2014)(unpublished).
9. Citing Griffin v. State, 19 A.3d 415 (Md. 2011), the Kansas court recognized three non-exclusive methods attorneys can use for social media authentication: 1) Presentation of testimony of a witness with knowledge; 2) Results of an examination of the Internet history or hard drive of the individual who is claimed to have created the social media material; 3) Presentation of information from an appropriate corporate employee of the social networking website that would link the profile to the individual. Id. at 427-28.
10. According to a 2014 survey conducted by FindLaw.com, the Internet was the leading source for identifying counsel (38 percent, up from 7 percent in 2005). Asking a friend (29 percent) and consulting a local bar association (10 percent) were the next most popular approaches. Litigation News, ABA, Summer 2014, Vol. 39, No. 4.
11. Debra Weiss, “Lawyer’s Blog Posts Could be an Issue in Judicial Confirmation Bid,” ABA Journal, July 28, 2014.
12. The Florida Bar v. Knowles, 99 So. 3d 918 (Fla. 2012).
ABOUT THE AUTHORS
Alison A. Cave of Edmond serves as claims counsel for Oklahoma Attorneys Mutual Insurance Company. Previously, she was a lawyer in private practice with the firm of Driskill & Jones and has also served as law clerk and attorney for the Oklahoma Court of Civil Appeals. She currently co-chairs the OBA Women in Law Committee. She is a 1985 graduate of the OU College of Law.
OBA President Renée DeMoss practices in Tulsa. With the firm of GableGotwals, she focuses in the areas of insurance law as well as state and federal litigation. She is a past president of the Oklahoma Bar Foundation and has chaired the OBA Litigation Section. She has served in leadership positions in numerous OBA committees and Tulsa civic organizations. She is a 1984 graduate of the OU College of Law.