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August 3, 2012

ABA Panelists: Be Careful Whom You ‘Friend’ on Social Networks

socialmediaLawyers and judges are becoming increasingly aware of the effect that social media such as Facebook, Twitter and YouTube have on jurors and ensuring fair trials. An expert panel at the ABA Annual Meeting on Aug. 3 in Chicago investigated what happens when technology and the law mix.

The Philadelphia-based panel, moderated by Hayes Hunt of Cozen O’Connor, included Judge Mitchell Goldberg of the U.S. District Court for the Eastern District of Pennsylvania; Catherine Henry, assistant federal defender for the Federal Community Defender Office for the Eastern District of Pennsylvania; and Louis Lappen, first assistant U.S. attorney for the Department of Justice.

Hunt estimates that the number of Facebook users is expected to reach 1 billion this month, and Twitter has about 500 million users. “Clearly, it’s started to affect what we do as lawyers,” Hunt said. “With those kinds of numbers, there is a reason there is so much conflict.”

One point of contention is “friending” on Facebook. Lawyers must avoid friending opponents as well as clients, so the clients “feel like they get a fair shake,” Goldberg said.

The client may think, “if you’re friends with the opponent and you’re supposed to be a pit bull, what is that about?” Lappen added.

Jurors must also not friend other jurors, he said, and they shouldn’t be tweeting how a case is going or researching details of a case online. “We need judges to find a way to help avoid this … by saying, you’re going to be tempted to pull out your iPhone and research, but don’t do it,” he said.

“[Jurors] could take a pledge,” Hunt said.

Advise clients to stop using social media, he said. “It’s like going to the psychiatrist but telling the public everything you said,” he said.

Sites like Twitter and Facebook can also cause trouble “when criminal defense attorneys are aware of relevant information out there,” Lappen said. “They are crossing the line when they say, ‘Delete that.’ There may be obstruction charges on the client or the lawyers.”

Still, there is an upside to the use of social media in law. “Social media for criminal prosecutors opens up a whole new world,” Lappen said. It “allows us to get some outstanding evidence.” For instance, the accused may have a Facebook site, allowing a lawyer to see pictures of him with a stack of money and a gun. “And the gun is ultimately recovered and easily linked to him.”

Lawyers may also get a court order to turn over an entire Facebook account or get a wiretap to monitor future postings, which produces helpful information, Lappen said. In addition, “their ‘friends’ are a treasure trove of information,” he said. Through friends, for example, a client may be revealed to be caught in a lie.

Social media may produce valuable details about jurors’ backgrounds before selection, too, Henry said. Lawyers can browse Facebook pages and LinkedIn résumés, and even produce information on how much a client’s house is worth, judgments against him or her, and whether he or she has a blog. “You can’t friend them, but you can monitor what they are doing during the trial,” Henry said.

This panel was present by the ABA Criminal Justice Section and co-sponsored by the Government and Public Sector Lawyers Division.

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Learn More About:  Annual Meeting 2012Ethics