Lawyers, Warn Your Clients About Social Media

Proactive Technological Literacy Is Essential

Law lags far behind technology.

I’m not just talking about how our legal system is slow to determine the legal status of technology — like, say, taking many years to decide whether putting a GPS tracker on a car is a search for Fourth Amendment purposes. I also mean that the legal profession is slow to adjust to new client hazards posed by changes in technology and associated culture. It took decades for lawyers to realize that clients say stupidly incriminating things in emails — things they would never say in more formal communication — before the profession began to take a methodical approach to counseling clients to stop that. But email is your grandparents’ tech now — new risks emerge constantly, and if lawyers are going to be a wise counselors and effective litigators, they have to keep up.

Take social media. To be competent, attorneys must be familiar enough with social media to advise their clients about its impact on their legal interests. In fact, that’s been a requirement for competence for at least a decade. Clients can, and will, eviscerate their own cases through a few careless Facebook or Twitter posts. Allegedly severely injured plaintiffs post pictures of themselves cavorting on the beach, purportedly high-minded employers post racist memes, and criminal defendants post themselves with drugs, guns, and money. A lawyer who is advising clients in any situation where social media posts could conceivably impact their representation — certainly in any litigation — must explain the risks.

Doubt me, do you? Consider the story of Rick Hamm, a federal defendant who wanted to serve his brief custodial time in home detention instead of in custody, where he faced serious risks from COVID. It’s a reasonable request. Don’t make the request when, like Mr. Hamm, you have railed on social media that COVID is a “hoax” and boasted of attending an unmasked “White Trash Bash.” Prosecutors read your social media, and they will enjoy quoting it in their opposition to your motion, which may result in a federal judge saying something like this about you:

Finally, the Court will address Mr. Hamm’s rights. Mr. Hamm has posted that “criminals have more rights than citizens,” that “law enforcement is a disaster,” that “Governor’s defy the President” and “I’m really mad about the way the Constitution is being walked on.” (June 10, 2020). While this order shows respect for the law and provides just punishment for the offense, it is doubtful that it will alter Mr. Hamm’s beliefs about “criminals.” The problem for Mr. Hamm is that he is a criminal. As a criminal, Mr. Hamm does have certain rights. At this point, Mr. Hamm’s rights include asking the Court to reconsider this decision, appealing to the Seventh Circuit, or asking President Trump for a pardon. But he does not have a right to not serve the prison sentence he agreed to because of a virus he does not believe exists.

You can read (and cringe through) the entire order here.

A competent lawyer can no longer say “I’m old school, I don’t know about any of that computer/email/social media stuff.” Technology permeates everything, including our clients’ fortunes.