Technology and Social media have combined to form the perfect storm for parties to a legal matter. While it is tempting to share, post, email or tweet about your divorce, eviction, injury claim, court proceeding, or statements your attorney made to you, it is important to understand the negative implications that can come from sharing information online.
When you consult with and hire an attorney to represent you in a legal matter, you form an attorney-client relationship. By definition, this relationship triggers the attorney-client privilege. This privilege protects information that you discuss with your attorney from being disclosed to others, including the opposing party. With the advent of social media and advances in technology, it is now easier and faster than ever to lose this privilege.
It is important to remember that you should not talk about your case with others. Even a simple post on Facebook, email to a family member to keep them informed, or a verbal conversation with a coworker or friend may be enough to allow the opposing attorney to force you and your attorney to reveal all communications about that matter.
You might be asking yourself, “How do I protect myself?” The answer is simple; don’t discuss your legal matter with anyone except your attorney. When discussing your legal matter, be sure that no one else is present who is not also a client in the same matter, as doing so may cause the loss of the privilege. If you text message, think of who might be viewing them. If you emailed someone, did you carbon copy or blind copy anyone? If so, you may have lost the privilege.
Next, think of where you are sharing the information from. Employer-supplied computers, laptops, and cell phones are subject to inspection and you have no reasonable expectation of privacy on such devices because the employer owns the device. Moreover, public Wi-Fi systems or public computers present the same issues of non-protection. You should always use your personal devices and personal email accounts, which should be password protected, to communicate about your legal matter. If you share email accounts or cell phone accounts with the other party to the legal matter, you need to establish an independent email account or cell phone account and both should be password protected.
While we are not prohibiting you from engaging in electronic and social media conversations, we strongly encourage you to refrain from sharing information relating to your legal matter in any forum that could jeopardize your attorney-client privilege. We are happy to discuss this more in person at the time of your initial meeting, but please be advised that you may see a statement similar to the one below on the engagement letter/fee agreement that we ask you to sign and acknowledge:
“We strongly encourage you to refrain from participating in social media during the course of representation. This includes Facebook, Twitter, Tumbler, Flickr, Skype, Instagram, and the like. Information found on social media websites is not private, can be discoverable, and may be potentially damaging to your interests. Understand that information shared with others, either verbally, in writing, in an email, text message, or even posted online could lead to the loss of the attorney-client privilege were that information in any way relate to the legal matter that we are handling for you.Given this, we advise you to refrain from communicating with us on any device provided by your employer or any computer, smart phone, or other device that is shared with someone else. In addition, when communicating with us, please do not use your work email address or a shared email account. You should only use a private email account that is password protected and only accessed from your personal smart phone or computer.”