I’ll be honest: sometimes I fantasize about practicing law in the pre-internet era. I wouldn’t be cold-called everyday by “SEO Experts,” claiming they can “triple my business,” I wouldn’t have to concern myself with learning about “cloud-based” storage or other technological advanced that help “save my firm time and money,” and most importantly, my clients wouldn’t be able to incriminate themselves or damage their cases by posting inappropriate photos on Instagram, friending the wrong person on Facebook, or “Twittering” the wrong message.
It seems that a fair share of my conversations about social media with clients or potential clients go like this:
Me: You should be very concerned about your web-presence from now on. You’re about to go through a (divorce, contested custody, contested paternity, etc) case and if you say the wrong thing or post the wrong picture it could really hurt your case. Although you probably can’t remove what is already up there as that could be considered spoilation of evidence, please keep that in mind from now on. I just don’t want to see you giving the other side ammunition or evidence that could hurt your case.
Client/Prospective Client: No worries. I am active on Facebook but my settings are on private. And I would never be absent-minded enough to post anything incriminating on the internet while engaged in litigation.
(2 weeks later)
Me: How is everything? You left a message at my office last night at 8 PM, is everything alright?
Client: I think I messed up. I posted a photo on Facebook of me drinking at a club on the night I was supposed to be exercising parenting time. Also, after I got home I was still drunk and I posted a comment about how my ex is a terrible father and that I always tell my child he deserves two good parents but unfortunately he/she only got one.
Me: Ok—hopefully your ex won’t see it.
Client: They already have. They called me last night and said they were going to tell their attorney about it and that they're upset I would drag our child into the divorce litigation. They also said they were going to claim I have a drinking problem.
Me: I thought you said the account was private.
Client: Yeah, I thought so. So should I just delete everything?
Me: No—as I said before that might be a spoliation of evidence. We just have to go into damage control mode.
Client: Wait—why can’t I just delete everything again?
The internet can be used for good or for evil, like most things in life. Unfortunately, it’s such a powerful tool that sometimes even the best people can slip up or have a down-moment. Reputation and credibility are so important in family law cases, and given that spoilation of evidence rules make it so it may be improper to later remove or change posts, pictures, etc., let this post (with its fictional dialogue) be a reminder to all practitioners to remind their clients of these issues and to anyone in the process or confronting these issues to be mindful of the dangers when posting online. This is particularly true with regard to family law, where such postings can be a particularly fertile ground for evidentiary purposes.
Your New Jersey Divorce Lawyer:
If you’re considering a New Jersey divorce or Family Law action contact me to discuss your options. You can schedule an initial consultation by calling my office at 908-237-3096 or by scheduling your own divorce consultation online by clicking here.