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Amid the COVID-19 pandemic, more people have turned to social media to communicate and share. But as social media continues to be ingrained in our lives, it’s easy to forget that everything we post is public information, or at least retrievable. That’s why it’s important to understand how social media could threaten the success of your clients’ cases.

Lawyers representing insurance companies have demanded access to injured plaintiffs’ social media content, according to Stacey Burke, a lawyer and marketer who founded Stacey E. Burke, P.C. to help law firms obtain new clients and improve their brand through effective marketing. It’s an issue law firms are seeing nationwide. In fact, more than half of attorney survey participants have seen an increase in litigation or eDiscovery matters related to images or information on social media and mobile devices. The findings are based on hundreds of interviews with lawyers in the largest law firms and companies in the U.S. 

So, what’s a lawyer to do? First, it’s critical to understand what the jurisdictions you’re admitted to practice in require you to know about your clients’ social media use, and what you can do to protect them. At least 35 states have formally adopted Comment 8 to Rule 1.1 of the American Bar Association’s (ABA) Model Rules of Professional Conduct, which requires lawyers to “… keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” Those states recognize that the requirement extends to social media. 

In her presentation, The Social Butterfly: Your Client’s Digital Life, Burke makes the following recommendations to attorneys:

  1. Confirm your venue and/or state’s ethical rulings about what you can and cannot advise your client to do with regard to their personal social media accounts.

  2. Strongly encourage your clients to post nothing on their channels immediately after an incident all the way through the lawsuit’s resolution.

  3. Make sure any photo, status, link, or otherwise pertinent information removed from a client’s social media account is archived or available, if needed.

  4. Advise your clients about any confidentiality clauses that will impact whatever posts they make after the lawsuit concludes.

As tough as it may be, abstaining from social media is the best advice for anyone involved in a personal injury lawsuit. As Burke notes in her presentation, the risks are too great.

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