Lawyers need to tread carefully in the digital world

By DOUG SHERWIN, The Daily Transcript

Lawyers can use Facebook, Google and other online tools to their advantage, but they need to be aware of the accompanying pitfalls, according to a social media panel held at the San Diego County Bar Association this week.

Local attorneys, judges and journalists gathered to discuss how new technology can make or break a case in a program co-sponsored by the SDCBA, San Diego Superior Court and the Society of Professional Journalists.

Wendy Patrick, a deputy district attorney, said attorneys can research their case using Google, Twitter or similar site featuring public information without fear of violating ethical rules, but they need to tread more lightly on Facebook, which contains private content.

“You’re not in trouble if you’re investigating with anything that’s publicly available,” said Patrick, who is a member of the SDCBA’s legal ethics committee and a Daily Transcript columnist. “YouTube and Twitter are different from Facebook.”

The SDCBA’s ethics committee recently found that “friending” a represented client on Facebook, even if the attorney uses their own name, is a violation of ethical conduct.

Since the technology is relatively new, Patrick said there aren’t any standard online/social media ethics rules yet, so attorneys should use their resources wisely to see what case law and ethical rules apply before proceeding.

When defending a client with incendiary posts on Facebook, it’s tempting to want them to remove the offending posts or delete the account. But attorneys are ethically bound to preserve evidence – either helpful or for the opposing side – and should immediately advise their client against erasing their online profile.

San Diego attorney James Friedhofer said it’s best to retain a computer forensic specialist who can preserve the online record and even recover some posts that were accidentally deleted.

The digital world also has placed an emphasis for attorneys on investigating all parts of the internet, in addition to social media.

According to Friedhofer, 95 to 97 percent of all documents are created electronically and, of those, 70 percent never get printed into hard copies.

“If you’re ignoring electronically stored information, then you’re potentially ignoring all the evidence in the case,” he said.

The prevalence of social media has created havoc for judges, who are having difficulty keeping jurors from hearing prejudicial information through sites like Twitter or stopping jurors from investigating a case on their own through Google.

In a 24/7 news cycle, “the biggest nightmare for a judge is picking an impartial jury,” said Superior Court Judge Joan Weber.

She noted having to excuse a juror who had seen information about the case on a local television station’s Twitter feed.

U.S. District Judge Anthony Battaglia said some judges in central California have their jurors sign written declarations before trial that they will not use Google or Twitter and then have them sign forms afterward saying they didn’t use those tools.

Some judges also are collecting smartphones before the case begins.

There is a legal battle currently being waged to see if social media companies can be compelled to provide access to personal accounts when investigating juror misconduct.

The ability to use information gathered from social media to put on a case also is being hotly debated.

“We’re starting to see Facebook and Twitter used very regularly (as evidence),” Weber said. “If it’s authenticated, you might be able to use it.”

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