Saturday 10 May 2014

Tips to protect your clients from dangers of social media during pendency of litigation

These days it seems that everyone is using social media, connecting people in ways never thought possible even ten years ago. In personal injury cases, social media can cause serious damage—we’ve all heard horror stories of people receiving minor settlements after a compromising photo or post was seen on Facebook. As attorneys, we must inform our clients of these potential dangers and help them make informed decisions on the use of social media to protect the integrity of their cases.
Although it’s best for clients to steer clear of social media completely while their claims are pending, many clients refuse to stop using their social media profile. If they persist in using social media, urge discretion in everything they post and explain to them the following 4 ways to minimize the perils of social media to their cases:
  1. Know all your friends and connections. The first and most basic social media rule for your clients is to only accept connection/friend requests from people they know. On social media sites such as LinkedIn, it is common to accept invitations without properly reviewing profiles. Insurance companies and their lawyers take advantage of this practice to directly connect with your clients and then access their information with permission.
  2. Take extreme care on what you post. Don’t have anything posted anywhere that you wouldn’t want your 92-year-old grandmother to see and review, i.e., don’t post anything that is socially inappropriate, offensive, or otherwise compromising. Innocent photos or posts may be taken out of context and negatively impact the claim. For example, I had a client with a shoulder injury who had a photo posted of him carrying a couple of dry-cleaned shirts. Defense counsel tried to use the photo to bolster the argument that my client was faking the injury. Although the dry cleaning probably weighed less than ½ pound, the photo was compromising. Also, photos of drinking or drug use create a negative view of your client even if it’s not inconsistent with the claimed injuries.
  3. Require review and approval on what’s posted. Telling your clients to limit their own activity on social media isn’t enough; your client also has to protect against being tagged in a friend’s photo or post. Clients should set privacy settings such that nothing can be posted on their social media site without their review and approval. But even such settings won’t prohibit offending photos and posts from being seen on the friends’ sites, so it’s best to avoid being photographed in compromising situations (or better yet, they shouldn’t be in such situations).
  4. Never post about your case. Advise your clients to never discuss matters relevant to their case (including about their injuries) with anyone other than their attorney and other confidential relationships. This rule of thumb will prevent confidential matters from getting out onto social media. Clients should never post anything about discussions with their attorney on social media; this can eliminate the attorney-client privilege and severely damage an injury claim. And even nonconfidential matters related to the case are off-limits. For example, the client may post that he or she feels much better after an accident when that’s not true; people naturally want to make others feel better and will post falsely positive updates on social media.
Although there’s no way to completely protect your clients from the dangers of social media, these steps can go a long way to preventing them from injuring their reputations and their claims.
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