Of Woodsheds and Clients’ Social Media Habits

Here’s another post under the “social media law” umbrella—this time about what intelligible advice, if any, lawyers can bank on when it comes to directing their own clients to “clean up” social media accounts. It’s not the first time this has been canvassed here on Slaw, as John Gregory’s post from earlier this year attests, but since I recently prepared materials for a webinar on social media as evidence, and in the course of that started a trial run of X1 Social Discovery (which is what the Department of Justice, RCMP, and at least two major Canadian law firms are using to gather social media evidence), I thought I’d chime in. Much of the below is from an earlier blog I posted for Courthouse Libraries BC.

It would be nice if there were more explicit guidance for Canadian lawyers when it comes to telling clients to “clean up” their social media accounts. The Federation of Law Societies’ model Code of Professional Conduct says that a “competent lawyer” will go as far as the retainer demands “investigating facts, identifying issues, ascertaining client objectives, considering possible options and developing and advising the client on appropriate courses of action.” How far to coach a client on social media is a matter of nuance. The New York County Lawyers Association released an opinion directly on this issue, and it is worth a glance. John Gregory, in his post, linked to another blog with some more outrageous anecdotes from the US.

Simon Chester, in a 2013 article in Canadian Family Law Quarterly, encourages lawyers to advise clients to reset passwords and ensure privacy preferences as a matter of routine. After that, it’s better to “say nothing” through social media, since anything “will likely be read and assessed by an elderly male judge without a sense of humor.”

While posting marathon finish times on Facebook seems ludicrous when that same plaintiff aspires to establish bed-ridden victimhood, this type of thing happens a fair bit. Often the damage to credibility is done before the lawyer is involved, but it also happens where there is ignorance on the part of counsel about what clients are up to online. How one advises a client in these cases is a bit like how one coaches tightrope. Don’t lean too far one way or the other.

Some advice is clearly merited to avoid blind ruination of a case by ongoing oversharing, but spoliation should not be risked. In the Canadian case of Terry v. Mullowney, [2009] N.J. No. 86, the plaintiff scuppered his multi-million-dollar hopes when he attracted adverse inferences by hastily shutting down his public Facebook profile after various evidence of his partying, drinking and daily marijuana use didn’t fly so well at a cross-examination. Justice Adams observed:

[105] Without this evidence, I would have been left with a very different impression of Mr. Terry’s social life. He admitted as much in cross-examination. After he was confronted with this information which is publicly accessible, he shut down his Facebook account saying he did it because he didn’t want “any incriminating information” in Court. I draw an adverse inference against Mr. Terry on account of this statement and conclude that the Facebook account which he shut down and some particular messages which he deleted prior to shutting down the account entirely contained information which would have damaged his claim.

Then there is the other extreme of Beattie v. Beattie, 2013 SKQB 127, which begged for some kind of woodshedding by its end, although some initial timely advice in the manner prescribed by Simon Chester could have been enough. It is absolutely worth a skim. Mrs. Beattie proved her own undoing by handing the other side all it needed to debunk her claim for continued spousal support (based on need). The trier of fact could simply not accept Mrs. Beattie was among the working poor, at least not amid her incessant tweeting about Lexus convertibles, great philanthropy, symphony nights, esteemed sommeliers, spa treatments, and such. Cases like Beattie stand for the proposition that asking your client to vet postings (prior to posting them) is, at the very least, valuable if the aim is not to have your case utterly implode.

These cases also speak to the need for more tools that lawyers can use to track their clients on social media and investigate facts. There are many features that look promising within X1 Social Discovery, and I plan to post about them in another week or two after I’ve completed my trial of it.


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