Everyone is familiar with the widespread use of social networking and the electronics needed to access them. Every day we see people with their heads down walking busy streets, or worse, driving, while texting on their iPhones or Droids, checking email, or posting the latest news about their busy day.
This phenomenon is a major cultural shift in the way we live and communicate. Today, people are in constant touch with their friends and others (including, like it or not, enemies), revealing all sorts of data about themselves through their daily postings. Naturally, if such a social movement affects the universe, it inevitably affects the legal world. And it has. In a big way.
The cyberworld is far too immense for a discussion of all the legal issues that arise in it. The purpose of this article is to suggest ways for counsel to talk to clients, witnesses and staff about their uses of cyberinformation and alert practitioners to issues that will undermine a case and a client.
Social Network Addiction
Many users are addicted to their social media and electronics. Psychologists like Dr. Michael Fenichel have popularized the notion of a Facebook Addiction Disorder (FAD) — that is, an obsession that causes individuals to spend so many hours of the day on Facebook that their lives are adversely affected. So many hours of the day on Facebook that one’s life is adversely affected. Such an addiction can affect our clients.
The varieties of mischief clients and witnesses can create for themselves on the Internet or with cell phones and other electronic equipment are almost endless. A few include:
- a juror contaminates the verdict in a long trial by daily posting on Facebook or Twitter about how the case is going;
- a trial witness is destroyed on cross-examination by having her testimony exposed as a lie by her Facebook postings made the previous day;
- a client is discovered running an illegal cocaine business through Craig’s List;
- a miscreant runs an anonymous (or so he thinks) libelous cybersmear campaign via webposts against a person’s small business;
- a bully, using a fake social network profile, repeatedly attacks a person on another person’s social network causing the latter to commit suicide.
All these things have occurred. Lawyers have a duty to be aware of the problems attendant to social networking. Many people cannot stop using their electronic devices to communicate about themselves no matter what the outcome. It is thus immensely frustrating for judges who have instructed jurors not to use their electronics and discuss the case as it proceeds through trial only to learn post-verdict that jurors have done just that. Trials have been overturned as a result. New legislation passed this year attempts to address the problem.1
Lawyers need to take affirmative steps to make sure that the addiction does not corrupt their cases.
First Interview Checklist
When interviewing a new client (or witness thought to be favorable to the case), inquiries must be made of the use of social media. Clients, and particularly younger ones, may see older attorneys as technological dinosaurs and tend to dismiss lawyerly admonitions. Thus, it is important to carefully explain the potential self-destruction that comes with misuse. The following list of suggested questions provides a start to client counseling. An explanatory introduction to these questions could begin with:
Because the Internet could be a source of much public information about yourself, I need to know what presence, if any, you have there. Law enforcement routinely checks available resources on the Internet to discover information about persons of interest. This has led to persons being criminally prosecuted simply based upon what they have placed on the online, or perhaps what their friends have posted about them. To properly advise you, I need to know the following:
- Do you have a profile on a social network like Facebook, Twitter, Linked-in, MySpace, Google Plus, etc.? Is it in your name? How many such profiles do you have? Are they it open to the public? What is posted? Where else do you post your communications? Have you commented on articles, blogs, or pictures on other people’s social media sites?
- Do you have your own website? How long have you had it? When did you first launch the site?
- Do you have a blog? What do you post there?
- Do you post material on YouTube? What exactly?
- Do you buy or sell on eBay, Craigslist, or similar services?
- Does your cell phone have video? Do you have a Flip Video or other similar recorder? Where is the content stored? Do you upload any of it to the net?
- Do you email from a computer, Blackberry, iPhone, iPad, iPod, iTouch or other smart phone? Do you use Skype or Gchat? FaceTime? Instant Message?
- Do you text message from your cell phone?
- Do you use LimeWire or similar peer-to-peer programs? Why?
- On what media do you store files or photos: a PC, Mac, laptop, PDA, DVD, CD, Compaq Flash cards, or do you backup files to an Internet site such as DropBox, iCloud, Mozy or similar resource?
Depending on the answers, each of the above questions may trigger follow up questions. And this raises an important point. What if clients tell you they post material on their website or blog that may well have evidentiary value to the case? What if this material may undermine the client’s credibility or implicate the client in criminal activity? How does one
advise a client? If the social media site has obvious harmful “evidence” on it, counsel surely cannot advise taking down the material without running afoul of ethical2 and legal3 mandates about destroying evidence. All counsel can do is advise, as stated in the introduction to the checklist, that social network surveillance occurs continuously in the cyberworld. Counsel should also strongly advise the client never to discuss the case with others in emails, blogs, or network sites, i.e., outside the confines of the attorney-client privilege.
First Interview Warning About Confidentiality
Any discussion with others about the case and particularly about communications with counsel, be they verbal or in writing (e.g., email, blog or social network posts) can destroy the confidentiality of that communication and thus the attorney-client privilege. This means the communication is fair game for collection and use by outsiders. As one court stated: “When a client reveals to a third party that something is ‘what my lawyer thinks,’ she cannot avoid discovery on the basis that the communication was confidential.”
The client should also be warned not to attempt to contact adverse witnesses. Even anonymous email contacts can be discovered both technologically and legally.5 Such contacts, if threatening or harassing, may also be criminal. (E.g., In re Rolando S. (2011) 197 Cal.App.4th 936 [the defendant accessed the victim’s Facebook account, altered her profile, and posted obscene messages and comments purporting to come from her; held, this constituted identity theft in violation of Penal Code section 530.5(a) and also violated section 653m, subd. (a) by using an electronic communication device to contact another person with obscene language and an intent to annoy].)
Further, if the client uses computer shareware such a LimeWire, which allows access to the computer to anyone in the cyberworld, there is no confidentiality about anything on the computer. Such publicly accessible file-sharing computer programs are deemed the same as having a website open to the public. There is no expectation of privacy in such computers.6 Clients should be instructed not to use such shareware because all communications by email with counsel will be open for public inspection and may destroy the confidentiality of those communications. Also, the typical use of such shareware is to violate copyrights by downloading as music, TV shows and movies, all of which are illegal.
Whatever attorneys cannot do, the same rules also apply to staff, hired experts and investigators. We have a duty to make sure they all understand the rules.7 One of the obvious investigative temptations is for the investigator to “friend” an adverse witness on Facebook. Is this permissible? Assume the investigator truthfully identifies himself but does not reveal that the purpose of the “friendship” is to gather information about the witness on a pending case. Several bar associations, including San Diego’s, have found this practice unethical.8
There are also legal problems with such an investigative tactic. Penal Code section 1054.8 says that witnesses whose names have been disclosed in formal discovery in a criminal case cannot be questioned without the defense interviewer complying with disclosure requirements of the statute. This law has obvious application when contacting such witnesses via a social network or email.
Generally, however, using Internet tools to investigate witnesses can be very fruitful. Just “Googling” a name often provides valuable information and is permissible. A host of pay sites will drill deep into the cyberworld to gather even more information about a person.
This short article offers a view of some of the issues presenting themselves when the cyberworld meets the representation of clients. The message here is to make inquiries about clients and witnesses use of the social networks, keeping in mind the above limitations of the law and ethical standards. Counsel’s timely advice may forestall a client’s thoughtless conduct that comes back to damage the case.
About the Author: Charles Sevilla is a San Diego attorney and practices exclusively in the area of criminal law, both trial and appeals, in California State and Federal Courts. He is a frequent speaker and presenter at legal conferences. Chuck has published books on legal humor and two novels about a fictional New York City defense lawyer, John Wilkes. He has authored numerous law review articles and is the co-author of a legal text, California Criminal Defense Practice, used by lawyers and in law schools throughout the country. CharlesSevilla.com