Does Social Media Make Client Control Impossible?

By Lisa F. Geherin posted 09-11-2017 08:41


​This past June, Martin Shkreli’s attorneys told U.S. District Court Judge Kiyo Matsumoto not to believe Shkreli’s tweets and posts on social media alluding to the fact that he had access to large sums of cash. The argument made by Benjamin Brafman was part of a request to reduce Shkreli’s bail from $5 million to $2 million. In particular, Brafman stated, “when people tweet, they don’t always mean what they say.”

All this raises the question, is social media making it more difficult to control clients? Telling a client to stay off of social media is “easier said than done in today’s world,” says Erik Syverson in the article “Social Media’s Impact on Litigation.” “Human beings are really addicted to social media and sharing every little thought or mundane daily experience,” he notes. Syverson suggests that a creative way to control a client’s social media usage is to restrict it in the retainer agreement, which may help the client take advice more seriously.

Attorney Dan Pinnington recommends giving clients a “don’t be stupid on social media” warning. Pinnington acknowledges that most clients can’t help themselves online and that their “real personalities and actions will shine through in HD.” Stressing to clients that “anything you say or do on Facebook will be used against you in a court of law” is a good way to emphasize just how good a lie detector social media can be.

It’s your duty as a competent lawyer to review your client’s social media upon retention, say Ben Rubinowitz and Evan Torgan in “Protecting Your Clients from Their Own Social Media.” That review should also include the public pages of those close to your client, including a “spouse, friend or colleague.” A particularly effective approach is to actually sit down and review with your client his or her social media pages to explain how opposing counsel may see and use them in the case.

Finally, should lawyers advise clients to take down photos and postings on social media sites? Rubinowitz and Torgan warn that lawyers have an obligation to preserve and maintain evidence, so “any postings or photographs that are removed should be printed and preserved before they are removed.” Courts increasingly view such deletions as spoliation of evidence and are likely to remedy this with adverse inference jury instructions or penalties. For example, in Allied Concrete Co v Lester, 736 SE2d 699 (Va Jan 10, 2013), a wrongful-death action, Lester’s attorney advised him to delete pictures on his Facebook page showing him “holding a beer can while wearing a T-shirt that said ‘I [love]  hot moms.'”  The details concerning the deletions came out during depositions, and the court imposed $542,000 in sanctions against Lester’s attorney.