Posts Tagged ‘social networks’

Cleaning Up Facebook Leads to Sanctions

Wednesday, November 9th, 2011

In a previous post I noted this admonition from an analysis by H. Christopher Boehning and Daniel J. Toal of  a recent article published in the Delaware Law Review, in which attorney Margaret DiBianca ” identified a number of these novel ethical issues:

Upon learning that a client’s social networking site contains information that is potentially harmful to a claim or defense, a lawyer may be tempted to advise the client to remove the harmful content. To do so, however, would risk running afoul of Rule 3.4 (a), and incurring sanctions for spoliation of evidence.

Failure to heed that warning (although the events recounted here likely occurred before the warning appeared in the article) has indeed lead to significant sanctions for an attorney (and the attorney’s client) who directed his paralegal to direct his client to “clean up” his Facebook page. The sanctions? Well, they totaled $722,000 (to be paid presumably out of a $5,000,000 judgment the client had obtain against the defendant in the proceeding in which the sanctions were issued. Here’s more:

”According to a September 1 order from Judge Hogshire, the spoliation began in March 25, 2009, when Murray received a discovery request for the contents of Lester’s Facebook account. Attached was a photo of Lester wearing a ‘I [heart] hot moms” t-shirt, and holding a beer can with other young adults.
Murray instructed a paralegal to tell Lester to ”clean up” his Facebook page because, ”we don’t want blowups of this stuff at trial,” the assistant, Marlina Smith, said in a disposition. She emailed that message to Lester the next day.
On March 26, 2009, according to the judge’s order, Murray came up with a scheme to take down or deactivate Lester’s Facebook account so that he could respond that he has no Facebook page on the date the discovery request was signed.
When defense attorneys filed a motion to compel, Murray instructed Lester to reactivate the account. But in a December 16 2009, deposition, Lester denied deactivating the account.
Murray is also accused of withholding the email from Smith instructing Lester to clean up his Facebook page when he was ordered to produce it shortly before the trial began. Murray falsely claimed after the trial that the omission was the paralegal’s mistake, according to the court order.”

The rest is here from JDJournal.com, but this is enough to bring me to the second point of this story that is worthy of comment:

 “Murray [the attorney] falsely claimed after the trial that the omission was the paralegal’s mistake, according to the court order.”

On second thought, it is probably not in need of comment as it seems to speak volumes all by itself.

Another Problem with Social Networks – Not Using Them Enough!

Wednesday, August 17th, 2011

Through posts from Patti’s Paralegal Page and Lawyerist.comI read “Ethical Bounds of Using Evidence From Social Networks” at Law.com. While much of the article covers well-tred ground (especially by Lynne DeVenny of Practical Paralegalism. But this article by H. Christopher Boehning and Daniel J. Toal includes analysis of  a recent article published in the Delaware Law Review, in which attorney Margaret DiBianca ” identified a number of these novel ethical issues.” In essence the article points out that given the prevalence of social networking, it may be a violation of an attorney’s ethical obligations of competent representation, diligent representation, and preservation of evidence not to become of aware of evidence available on social network sites for all parties to litigation. For example, they point out, ”

Preservation of evidence. Under Rule 3.4 (a) (1) of New York’s Code of Professional Conduct, a lawyer may “not suppress any evidence that the lawyer or the client has an obligation to reveal or produce.” The duty to preserve relevant evidence — including “computerized information” — attaches upon the reasonable foreseeability of litigation.

Upon learning that a client’s social networking site contains information that is potentially harmful to a claim or defense, a lawyer may be tempted to advise the client to remove the harmful content.[FOOTNOTE 12] To do so, however, would risk running afoul of Rule 3.4 (a), and incurring sanctions for spoliation of evidence.[FOOTNOTE 13]

A lawyer cannot, however, attempt to preserve that which he does not know exists. This is yet another reason why lawyers should familiarize themselves with clients’ online activities — to ensure compliance with the rules of discovery.

Since checking the internet for possible evidence is typically a paralegal’s job, take a moment to click through and read the entire article. Then make an addition to your case startup checklist!

A New Facebook Page for The Empowered Paralegal – Don’t Get Dooced

Wednesday, September 2nd, 2009

At the suggestion of a reader I have set up a Facebook page for The Empowered Paralegal to provide a place for social networking by paralegals interested in the issues raised in this blog, especially those new to “real” networking and in need of some support. I am not real sure how to best use Facebook in this regard, so your input will be much appreciated. However, before you start visiting the page at work read Lynne Devenney post at Practical Paralegalism, Social Media Hazard: Don’t Get “Dooced” from Your Job.

I hope to be back a bit later today with a more substantive post.

Can Facebook Sabotage Your Career?

Tuesday, August 25th, 2009

Speaking of California, the April 2009 Fresno Paralegal Association Newsletter
has an excellent article by Vicki Voisin of the Paralegal Mentor entitled “Are You Sabotaging Your Career.” In the article Vicki warns of some of the pitfall of social networking websites:

You are, in essence, dropping clues right and left about yourself and you may be offering too much
information. Many companies (that includes law firms) now use social networking sites to screen prospective hires. They may also use them to check on the behavior of current employees. A simple entry of a name in the Google search box can reveal all kinds of information…some of it may be embarrassing.
Social Networking isn’t just about you. You really have little control over who sees your information. Your contacts have access to it. Their contacts have access. Those contacts have access. You can see how the web widens.

Vicki’s point cannot be overstated. Whenever I’m about to have significant professional dealings with someone new one of my first steps is to do an internet search for information about that individual. Interviewing a new candidate for a position in my office – a person who will have access to confidential information, be the primary contact with my clients and have access to client trust accounts – certainly qualifies as “significant professional dealings.” Consider the likelihood of hiring someone who’s Facebook profile picture show them well “under the influence” at a Jimmy Buffet concert. While a potential employer may understand and even approve of the events that led up to the picture, most employers would question the professionalism and discretion of a person who posts that picture as their first and best impression.

Vicki suggests

Your online presence is a virtual resume. Craft your profi le very carefully so you reveal only positive information. Don’t use a screen name that gives a poor impression. Don’t post pictures or videos you wouldn’t want your mother to see. Delete any photos your friends might post that show you drinking and partying. If any off -color comments are associated with your posts, delete them immediately. Choose your Facebook friends and followers on Twitter wisely. You don’t have to accept every request.

Does this mean you can never have fun or at least never share that fun with your friends? Not at all. However, keep in mind that you have a professional life and a personal life. Keep the two separate even on Facebook, mySpace and Twitter.

There is, of course, a tie-in between Vicki’s story and Chere Estrin’s story discussed in a previous post, “Who Is in Charge of Your Career?” Some of these same issues are also discussed in real-life networking contexts in “Martinis and Professionalism.

The bottom line is that Facebook cannot sabotage your career, but you can. You should be in charge of your career both on and off the internet.