Be Neutral
A Publication of the Georgia Office of Dispute Resolution



Social Media in the Law 

LinkedIn, Facebook, Twitter, blogs and YouTube and various other smaller Internet networking and communication websites comprise “social media.”  It is a wonderful and powerful communications tool – a great way to market your products or services, keep family and friends informed, engage in ad hoc collaboration and other useful purposes. However, the Internet is a public place, not a private place. The implications for statements made on social media are the same as for those made in a newspaper, book, or in a public place. Some statements are privileged, some are libelous, some are admissions against interest, and some are breaches of ethical duty. 

Statements made on social media may be admissible in evidence as admissions, provided they are not obtained by deception. Cases have often been derailed by representations made on Facebook pages:          


  A man who was getting alimony from his former wife claimed on his Facebook page that he was a successful businessman. He described traveling to exotic places with his girlfriend. 
  Another man showed himself sitting in a Ferrari, taking a cruise and selling a piece of property he owned. He claimed in court he couldn't afford child support.
  A woman in an wrongful discharge mediation claimed her employer fired her. On her Facebook page she said she was laid off and happy to be gone.

Mediation is a confidential process.  Unfortunately, ill-advised Tweets or entries in other social media by lawyers, parties or mediators can breach the duty of confidentiality.  While there are no known examples of mediators commenting on mediations in which they are involved, there are horror stories involving lawyers:      

  A lawyer issued the following Tweet: “Just talked to my client who totally lied to me about all the facts”. Since the date and time of the Tweet get posted someone who knows the lawyer, such as an opposing attorney, will have this confidential and, to the client, harmful information. 
  The New York Times, in an article cited below, reports that a public defender blogged about her cases including confidential details of the case in statements such as “This stupid kid is taking the rap for his dirt-bag drug dealing older brother because he is no snitch.”

What about commenting on the judge or mediator in an uncomplimentary way? A September 2009 article in the New York Times by John Schwartz contains the following examples of things lawyers should not do or say in social media:

  “Sean Conway was steamed at a Ft. Lauderdale judge, so he did what millions of angry people do these days: he blogged about her saying she was an evil, unfair witch.” The result: he was reprimanded by the Florida Bar and fined $1200 for his intemperate post.  
  A lawyer in Illinois lost her job as a public defender after 19 years of service for over blog postings in 2007 and 2008. In one post she referred to one jurist as Judge Clueless. She is also faced disciplinary action by the bar as well.

Presumably, similar intemperate comments on the competence or character of mediators, particularly those participating in court sponsored systems, should result is disciplinary action against the offending lawyers. But suppose the comments are made by parties or other witnesses attending the mediation? Will there be court sanctions such as citing the person for contempt? We won't know until there is a particularly egregious case. However, sanctions would seem appropriate where the activity threatens the integrity of the process.

Mediators have an ethical duty to remain impartial. “A mediator must demonstrate impartiality in word and deed. A mediator must scrupulously avoid any appearance of partiality. Impartiality means freedom from favoritism, bias or prejudice.” Georgia Supreme Court ADR Rules, Appendix C, Chapter 1, Ethical Rules for Mediators. The  question then arises:  is it permissible for the mediator to investigate the parties through social media?  I know of no cases involving mediators, but a North Carolina judge was reprimanded for engaging in ex parte communication with defense counsel via Facebook and for investigating plaintiff’s counsel by visiting her website. That conduct clearly suggests partiality toward the defendant by the judge. Mediators who investigate the parties or lawyers would create an at least the appearance of partiality and violate their ethical duty.    

Given the difficulties that can be created by social media, wouldn't it be wise for mediators to caution lawyers, parties and witnesses to refrain from posting anything regarding the mediation on any of the social media to which they subscribe?  It should be done is my opinion.  

(Note: For a good overview of implications of social media for lawyers, witnesses, jurors and judges see Steve Mehta's presentation to the Santa Clara Bar Association at   Mehta is a California lawyer and mediator. Illustrations for the subjects presented are drawn from that presentation and the sources credited therein.)           


John D. Marshall, Esq., is a registered mediator and arbitrator and principal of Marshall Dispute Resolution Services of Alpharetta, Ga.  A lawyer for more than 40 years, he specializes in employment, business contract, tort, healthcare, and insurance contract disputes as both advocate and neutral.  He is a member of the dispute resolution sections of the State Bar of Georgia and the American Bar Association, and he is a member also of the Association for Conflict Resolution.      

12600 Deerfield Parkway, Suite 100, Alpharetta, GA  30004Phone: 678-358-5623;  fax: 678-366-5001