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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:
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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. |
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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. |
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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:
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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. |
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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.”
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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:
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“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. |
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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
http://stevemehta.wordpress.com/2011/03/23/1334/. Mehta is a
California lawyer and mediator. Illustrations for the subjects presented
are drawn from that presentation and the sources credited
therein.)
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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
jmarshall@marshalldisputeresolution.com
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