Legal Ease, vol5

logo-black-lobelloSocial Media Trappings And Waiver Of Privileges And Confidences
By Maximiliano D. Couvillier III, Esq.
May 2015

Facebook®. Twitter®. Instagram®. Such examples of social media allow people to stay connected and share many things with their internet “friends” and “followers.” People share funny stories, jokes, rants, pictures and life events. Posting on social media sites also give people a forum for ideas or social or political commentary. Postings are sometimes driven by how many “likes” or “followers” a person believes the posting may generate. It is worth repeating that internet and social media postings live on forever in cyber space and that postings and pictures can be manipulated by cyber hackers. In the litigation context, repeated stories circulate about social media postings which have significantly impacted lawsuits. Examples are plenty: The litigant who claims an injury in a lawsuit but posts pictures of herself exercising vigorously in a spin class; the husband who inadvertently posts compromising pictures of himself with another woman; the video uploaded showing off speeding in a new car that is later shown by the accident victims. There are, however, other lesser known ways that social media posts can come back to bite.

Confidentiality. When parties are able to settle lawsuits they generally enter into settlement agreements which contain confidentiality provisions. Those confidential provisions must be taken seriously and considered carefully.   They often prohibit parties from disclosing the terms of the settlement, including any monies exchanged between the parties. Litigation can consume ones’ life. It can be very emotional and leave bitterness between the parties, even when a lawsuit is privately settled. That said, it is natural for people to want to talk about their lawsuit and plight with their friends, families and even work colleagues. There may be an even stronger urge to want to discuss a lawsuit when a settlement is reached, especially if a person feels vindicated by a settlement. Boasting on the internet about how much money a bitter adversary paid to settle, however, will quickly crush any perceived vindication or victory if the settlement agreement contained a confidentiality provision. Do not grasp defeat from the jaws of victory.   Just ask the Florida father who lost a $140,000 discrimination settlement from a private school (which included the school paying the father’s $60,000 attorneys’ fees) after his daughter posted on her Facebook® page: “Mama and Papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT.” The school quickly learned of the post and sent a letter to the father stating that he had breached the confidentiality provision of the settlement agreement and would not be receiving any money. When the father asked a court to compel the school to pay the settlement, the Florida appeals court sided with the school. So in the end, the father not only lost out on his $80,000 share but also lost his discrimination case against the school because he could no longer sue the school. Furthermore, the father is probably now stuck with his $60,000 attorneys’ fee bill that the school would have otherwise paid.

Attorney-Client Privilege.  The attorney-client privilege is held and controlled by the client and not the lawyer. Thus, while the attorney-client privilege is often raised by the lawyer, the lawyer does so on behalf of his or her client, and ultimately it is the client (and not the lawyer) who may assert the privilege or waive its protections. A client can waive the attorney-client privilege by disclosing to third-parties the contents his communications with his lawyer. For example, a client can waive the privilege by telling his golfing buddy what his lawyer opines about his pending lawsuit. A client can also waive the privilege by courtesy copying others in emails or texts with his lawyer. Social media has created additional pitfalls for inadvertent waivers. One such example is the growing trend to post on-line lawyer reviews. The growing popularity of lawyer review sites like AVVO®, Yelp® and Martindale® encourage clients to post lawyer reviews (good or bad) and lawyers are often rewarded with better marketing opportunities depending on the number of reviews that they receive. The problem arises when a client’s on-line review discloses the contents of lawyer communications.   A client unhappy with progress of a lawsuit may go to an on-line review site to air out his or her frustrations and discuss what the lawyer told him about the prospects of his case and how they have not materialized as promised. Another client may go to internet lawyer review sites to seek a “second opinion” about what her lawyer told her regarding her case. In these cases, there is a very likelihood that the client waived the attorney-client privilege and the client’s communications with his lawyer are now free game for the adversary.

If you are involved in litigation, you should consult with your attorney about social media management. Your attorney should work with you to develop a social media protocol to follow. You should also communicate with your attorney about posting on-line reviews. If a positive review is intended, the attorney will obviously be pleased but can remind the client about keeping privileged communications out. If a negative review is intended, a consultation with the attorney may help resolve a client’s concerns.