What do you put on Facebook? We’ve known for a while that people feel pressure to “put their best foot forward” when they post things about their lives online. Rather than posting about eating a TV dinner at home while wearing sweatpants and watching “Ancient Aliens,” you’d rather post pictures of a Caribbean vacation, a new car, or eating at a fancy restaurant. As a result, we do something called “curating” – selectively posting the good things rather than the bad.
Which brings us to what happens in personal injury lawsuits.
A recent article outlines how defense lawyers in personal injury lawsuits are using Facebook, Instagram, Twitter, and other social media sites as evidence. I’ve written before about personal injury lawyers using fitness trackers to show how an injured person moves around day-to-day. When someone claims they’re injured but posts photos on Facebook showing them running a 5k, it’s going to come out in trial. Problems can even pop up from posting things once a case is finished.
Lawyers face an ethical dilemma here: they have an ethical duty to put on their client’s best case, but they can’t do anything that would unlawfully conceal or destroy evidence.
Do they tell their clients to post about their pain and suffering, and then run the risk of being accused of coaching their clients to “trump up” their injuries? Do they tell clients to delete photos of them at the amusement park and risk being accused of trying to hide evidence from the defendant? Do they tell clients to stay away from social media entirely, and then risk appearing like they’re trying to hide something even when they’re not? Do they tell clients to make their profiles private, and then risk the defense lawyers asking the judge for a court order allowing them to peruse their social media accounts? There aren’t really any good options.
The Florida Bar waded in to the social media swamp recently, and said that a lawyer is ethically allowed to tell a client to make their social media profile private, or even delete things, as long as the “evidence” is preserved and not destroyed. Translation – a lawyer can’t tell their clients to permanently delete anything, because that would be destruction of evidence. So even telling a client to delete posts or make their account private won’t prevent it from being used against them.
Maybe the best policy for a lawyer is to only represent clients who don’t have Facebook profiles.