Its the Twilight Zone….You and Your Clients Are Being Observed…on Social Networking Sites

The popularity of social networking sites like Facebook and MySpace is through the roof. Further, as professionals, we can link with other professionals around the country and around the world with Linkedin or Plaxo and other professional networking sites. As attorneys, we must exercise care and caution and we must counsel, no, we must insure that our clients do the same. While these sites are wonderful marketing tools for us and a nice way to socialize for our clients, all of us must remember how public they are. If there is information about you or your client that you do not want disclosed, one of the quickest ways to disseminate that information is to post something on a social networking site.

Simply put, these pages are not private; anything you post on a social networking site is potentially discoverable by adverse parties and attorneys. You and your client must assume, always, like Miranda, that anything you say (post on a social networking site) can and will be used against you in a court of law.

I know I am, to a degree, preaching to the choir. I know that my brother and sister attorneys see the danger. But seeing or appreciating the danger is not enough; you must communicate the danger to each and every one of your clients. You must create a client outreach program in your office and educate and alert every one of them about the dangers of these social networking sites and the impact that a simple, innocent comment or picture can have on the outcome of a potentially valuable case. Photos and videos can depict a side of your client that you do not wish a jury, the defense, the insurance company or several million people to see. Haven’t we all heard stories of embarrassments or worse consequences to posts that were innocently posted with no thought of harm?

Clearly, this client education must come from you and/or our professional staff. A young or unsophisticated client, with a serious injury or disability, may post some activity that he/she engaged in on a "good day", and this will become the poster child for the ability to engage in this activity without constraint. Be able to participate or appear to participate for a moment, five minutes, or for the time it takes to snap a photo or shoot a video could easily create an inaccurate image of health that could be very damaging to your client’s case. Clients must be taught that these seemingly harmless activities may have a devastating effect on their credibility and on the outcome of their cases. Clients must be counseled to exercise, constraint, good sense, and caution when utilizing these social networking tools.

Many clients do not think of these sites as sites of exposure. After all, they are communicating with friends, family, or business acquaintances, not the general public. But, you must make them aware of the probability that "Big Brother" is watching, in the person of the defense attorney or a member of his/her staff, or the insurance company in the person of an adjuster, claims manager or claims office staff member.

And, ask your client if he/she knows that clicking "private" when writing or sending a page on line does not insure privacy. Let them know that deleting items does not make them disappear (both "private" writings or postings and/or deleted ones may be recoverable by your web host if they are subpoenaed). Ask your client if he/she knows that anything said on a social networking site, whether true or not, will be assumed as true, if against client interest, by the defense.

What if your client has a serious back injury from an automobile accident? What if that same client posts that she slipped and fell on ice, coming out of her mother’s house, last night, and fell flat on her back. If the defense gets its hands on this, do you think it will have an impact on the auto accident case?

What if your client, accused of drinking on the night of the accident, testifies that he never drinks alcohol? What if he posts a picture of himself on Facebook at a New Years Eve party, holding a cocktail? Do you think that will effect his credibility? Impact his case? Even innocuous, innocent, behavior can look and "feel" differently, when viewed on a social networking site.

Bottom line? You must educate your client to avoid these totally unnecessary dangers lurking on these social networking sites. In your initial intake interview with a client, inquire whether the client has a presence on any of these sites. If so, explain that nothing he/she does while the case is pending should be considered "private". In workers compensation cases, injured or disabled workers have been followed, videoed and photographed, out of context, for years. In any case where disability or restriction is alleged, your client must assume he/she is being watched. But handing your valuable case to the insurance company on the silver platter of an seemingly innocent comment on a social networking site is, absolutely, preventable with appropriate counseling and education.

Here is one more important caveat: Many clients have visited lawsuit funding sites in search of a necessary lawsuit cash advance while their cases are pending ; Lawsuit Financial has certainly been busy these days. It is important to counsel your clients to utilize a company that is owned and operated by an attorney who honors attorney-to-attorney confidentiality. Make sure your client is careful not to make disclosures to litigation funding sources that would be discoverable by the defense. Get to know the company and the person running it. For more information on how to deal with client social networking issues or legal finance disclosures, please feel free to contact Lawsuit Financial. Our singular goal is to assist attorneys and clients in obtaining additional revenues in their personal injury cases.

Mark Bello has thirty-three years experience as a trial lawyer and twelve years as an underwriter and situational analyst in the lawsuitfunding industry. He is the owner and founder of Lawsuit Financial Corporation which helps provide cash flow solutions and consulting when necessities of life funding is needed during litigation. Bello is a Justice Pac member of the American Association for Justice, Sustaining and Justice Pac member of the Michigan Association for Justice, Business Associate of the Florida, Tennessee, and Colorado Associations for Justice, a member of the American Bar Association, the State Bar of Michigan and the Injury Board.