Anyone who's watched a legal drama is probably acquainted with the concept of attorney-client privilege--the idea that neither attorney nor client can be compelled to testify about their confidential discussions. The intent behind the privilege is to ensure frank and open communication between counsel and client, with good legal advice and advocacy as the goal.
The “digital revolution” of the past several decades has forced the courts to re-examine the scope of confidentially. For example, in 1994 Congress amended the federal wiretap statute to extend attorney-client privilege to cellular phone communications.
The American Bar Association recently held a legal seminar addressing more recent case law. Courts have generally extended the privilege to emails and text messages. But notably,some courts have held that clients do not have a reasonable expectation of privacy when using an employer's device or system. Email or texts sent or received on a work phone or computer may also break the privilege.
One important element of the attorney-client privilege is private communications between lawyer and client. Thus, in the social media world it should come as no surprise that posts to websites like Facebook and Twitter are not confidential, and are now frequently mined by opposing lawyers during discovery. As at least one Court has commented, these sites are clearly simply "not private."
At our firm, we warn our client not to post anything relating to their legal case or any attorney-client communication to social media.
Refrain from emailing, texting, IMing, skyping, and Instagraming anything about your case..... Because yes, your posts may be used against you in a Court of Law!
Mike Bottaro is founder of The Bottaro Law Firm, a Rhode Island personal injury law firm.