Snooping Attorneys Can Be Prosecuted, New Jersey Supreme Court Rules
New Jersey’s highest court ruled Tuesday that two defense lawyers accused of spying on a plaintiff’s Facebook page can be prosecuted for attorney misconduct. According to a story by the Wall Street Journal, the two lawyers involved were defending a personal injury case. At first, they simply monitored the public Facebook profile of the injured plaintiff. However, after that plaintiff made his Facebook page private, the snooping lawyers had a paralegal at their law firm send him a Facebook “friend request” which he accepted despite not knowing this paralegal.
Once caught, the two defense lawyers tried to play dumb, claiming that they did not know how Facebook’s privacy setting worked. But here’s the rub: the fact remains that these two “know nothing” defense attorneys instructed one of their law firm employee to directly communicate with a repressented opposing party. That is a big “no-no.” One of the fundamental and sacred rules in the law is that lawyers cannot communicate directly with an opposing party who is represented by another attorney. Having a staff member send a Facebook “friend request” was clearly an attempt to contact a represented and opposing party.
What are the lessons here for people involved in a lawsuit?
First, while defense attorneys clearly should not attempt to get past your private social media accounts, assume that ANYTHING you post, ANYWHERE, whether private or not, will be found and used against you in your case. My advice to clients is that they not post anything about their accident, themselves, nor anything else that could paint them in a negative light. Better yet, I tell them to consider just staying off social media altogether while the case is ongoing.
Second, I tell clients to review their privacy settings on all their social media accounts. On Facebook, limit your audience, at best, to “Friends”, not to “Friends of Friends” and definitely not to “Public.” Think about it – a defense lawyer can get around the rules against direct contact with a represented party if they become a Facebook friend of one of your friends. In other words, they will be able to see all your posts if your privacy settings allow showing to “Friends of Friends.”
Third, carefully monitor your list of Facebook friends. Any names there that you don’t recognize? Boot them, immediately.
Fourth, review posts that any friends tag you in before they appear on your timeline. Adjust your privacy settings so your friends can’t include you on a post that appears on your timeline without your knowledge and/or permission. A friend may tag you in something that may make you look bad by association. Why take the risk?
Fifth, think about making specific lists for close friends or family. Click “Edit Friends” after you click Account in Facebook, then go to “Create a List” to categorize your friends and family. You can them limit posts to be viewed only by specific lists of your choosing.
Sixth, review your profile and in particular, your “likes” and “groups.” Consider removing any controversial or political “likes.”
Also, disable Facebook or othwer social medial “location tracking”, and whatever you do, please do not “check in” to places through any social media. If you are injured but go out to a nightclub simply to hang out with friends, a “check in” could be misinterpreted that you danced the night away, injuries and all.
Finally, when in doubt, don’t post. Assume that anything you post can and will be used against you in a court of law.