May 2012 Bar Bulletin
by Lisa Dufour and Kim Schnuelle
Do you Tweet, Facebook, IM, Skype, text or blog, get LinkedIn, use a listserv or brag via email on the Internet? There can be serious consequences in family law if you or your clients use social media to talk about the issues in your case.1
Since the same ethics rules apply to social media as to other methods of communication, a variety of ethical violations can occur if you are not careful. In addition, any disclosed information can be used as evidence against your client.
No longer are attorneys limited to documents they can type with a carbon copy and to exhibits that are letters, books, maps or photographs of actual people. Clients and the court expect attorneys to be fluent in the language of electronic communication.
Most family law courts in Washington, including King County Superior Court, now require attorneys to e-file documents. Clients expect to be able to email questions to their attorney for a quick response to their concerns. It goes without saying that the use of electronic media to communicate has drastically changed the face of family law.
A family law case could actually be completed with the attorney never meeting the client face to face. Some clients living outside the area may want to Skype (teleconference over a computer with voice and images) for the consultation. Documents can be reviewed, edited and signed electronically or by the client scanning and sending a signed copy as an email attachment.
Word documents can be emailed to the client to review and edit without the attorney or a secretary having to redraft it. Even clients in foreign countries can have immediate access to their attorneys via a smart phone, laptop or electronic notepad.
Beyond the ease of consultation and communication, rampant use of social media and ubiquitous cameras on our phones and iPads has caused a proliferation of electronic evidence. This can now include the client’s proof of incidents or statements captured on a mobile device or, conversely, video of the client behaving badly. Facebook pages and information from other social media sites are now routinely submitted as evidence. Text messages can be effectively copied by being photographed with another wireless device. Printed emails can fill notebooks and are often used as a party’s statement against interest under the best evidence rule.
Although most courts now mandate e-filing, in practice courts are still reliant on information submitted on 8Ω-by-11-inch paper. We are not currently aware of any courts that allow submission of video for a family law hearing when the hearing is based on written declarations, but certainly that time may arrive. At trial, a video may be presented so long as the legal requirements for notice and permission to videotape the subject or event have been satisfied.
What evidence rules apply regarding submission of texts, Facebook or email as evidence? The statements may certainly be relevant pursuant to ER 401. The emails or texts also can be used as a prior statement of a witness or a statement against interest by a party-opponent pursuant to ER 613 and ER 801. Texts can certainly be qualified as a present sense impression, an excited utterance or a statement of a then-existing mental, emotional or physical condition, as an exception to the hearsay rule under ER 803(1)-(3).
What if the disclosure of an email is inadvertent? If an email was sent to the wrong person or the email was accidently sent by you or your client to opposing counsel, does the attorney-client privilege protect this inadvertent disclosure? We believe the attorney-client privilege still applies and the attorney receiving the email should notify the other side and then destroy/delete the email. The email also should never be submitted to the court as evidence; even with the “brave new world” afforded by electronic media, the Rules of Professional Conduct still apply.
Attorneys have to be careful to avoid violating the RPCs in their use of social media or electronic correspondence. The prudent practitioner should not “reply all” to opposing counsel’s email if the other attorney has copied their client; this would violate RPC 4.2 prohibiting contact with a represented party. Although the opposing party may not be listed in the header or copy line of the email, they may be blind copied and thus an inadvertent communication could occur. As a corollary, family law lawyers in particular need to be careful in wording emails to their clients because the client could forward the email to anyone, including the opposing party.
If your client has a website, due diligence under RPC 1.3 probably requires that you take a look at the site before arguing about it.
Since attorneys can also be held responsible for actions of their non-lawyer assistants under RPC 5.3, it is a sound practice to have written guidelines prohibiting your legal assistant from posting any information about cases on a social media site.
Finally, to protect your client in a family law case from blowing their case through electronic disclosure of harmful facts, send the following guidelines to your clients:
1) Do not post pictures or video on Facebook, You Tube or other electronic media or websites during pendency of the case. If there are damaging photos on electronic media, e.g., video or pictures of them naked, drinking, smoking pot (think Michael Phelps) or playing with guns, they should try to delete them or get the site to remove them. However, your client should be aware that deleted photos may still be discoverable evidence, so the better practice is to never post them in the first place.
2) Do not post pictures of trips to Disneyland or other out-of-state locations with the children if there is a restraining order that restricts their travel with the children to within Wash≠ington.
3) Do not place a GPS device on their intimate partner’s car and then follow them, snooping in the windows to see them with their “friend” to prove they are having an affair. Placing a GPS device on someone or tracking them by GPS is inappropriate and can be found to be stalking.
4) Do not place a keyboard recognition tool on the family computer to track and trace an intimate partner’s Internet use and emails. Again, this type of behavior is considered controlling, abusive and intrusive. It is absolutely an invasion of privacy, albeit electronic privacy.
5) Taking someone’s phone or computer can also be seen as more than just the theft of a piece of property. Taking a phone or computer can interfere with the reporting of a domestic violence crime and be found to be controlling and or abusive. Tell your client not to take their intimate partner’s phone or computer, even if your client purchased the item or is paying the monthly bill.
6) Do not hack into an intimate partner’s Facebook/email/bank account records or any other Internet account. Again, this is considered intrusive and an invasion of privacy.
7) Do not send texts/emails to an intimate partner’s friends or electronic contact list discussing the family law case. Things they say in an email or text may come across as threatening or harassing without an actual intent to be so. Informing others by electronic means of private details about a family law matter can be extremely hurtful and will typically portray the sender in a bad light if filed with the court. It could also be a violation of a domestic violence protection order if the client is restrained from contact with the protected person.
Social media have significantly changed the way family law practitioners prepare and present their cases. Emails and texts can violate a restraining order, anti-harassment order or no-contact order and subject the restrained person to arrest. Hacking into social media pages, emails or phones can be seen as violating a person’s electronic privacy and can be used as evidence when requesting a restraining order, anti-harassment order or no-contact order.
Family law matters are now inextricably intertwined with electronic social media. It is the family law attorney’s duty to warn their clients to always be very careful when disseminating information electronically. In addition, every family law attorney also needs to be very careful with respect or his or her own use of electronic and social media.
The consequences of a 140-character tweet, a quick text or a five-second angry email can be long lasting and very damaging to you professionally and damaging legally and personally for your client.
1 This article does not discuss ethical issues associated with social media advertising or Internet legal research issues, even though both also can directly affect a family law case.