One of the most common pieces of legal advice a client will receive from lawyers during litigation is also the simplest: stay offline. That means don’t text or instant message friends or family. Don’t post to social media for any reason. Don’t post to message boards. Don’t send emails. In general, don’t surf the web for communication purposes unless paying bills. Lawyers will be the first to admit that clients rarely follow this golden rule — and they’re even likely to break it themselves.
It can be difficult for lawyers to remember that they can become defendants almost as easily as they can support plaintiffs. When can someone sue your legal practice based on a social media post? There are a number of reasons — and even law firms have been responsible for breaking these laws.
The first is common, but difficult to prove. Posts that defame the character of an individual or organization are grounds for a lawsuit. Sometimes, lawyers mistakenly post defaming content about rival law firms or the clients of a rival law firm. This can result in additional litigation unless those claims can be proved true. Basically, be careful not to make false statements online!
An anonymous lawyer for Castronovo & McKinney said, “We once sued another firm for posting disparaging commentary about one of our associates. We were baffled. They did it for no reason at all! We believe it was a mistake on their part.”
Posts that invade the privacy of an individual or organization are also subject to lawsuit. Law firms are rarely guilty of this, because lawyers know they can’t post embarrassing photos or infringe on a person’s privacy without consent.
One common reason a law firm might be sued by a person or organization for a social media post is breach of contract. This is often the result of a failure of communication. Let’s say a junior associate is tasked with updating social media with information about an ongoing case to keep the public apprised (because the firm wants the public on its side). But the junior associate accidentally publishes privileged information that should never have been disclosed because it was protected by an NDA. The firm is not subject to litigation — and will probably lose in court.
Law firms are also sometimes sued for harassment because of social media posts. Harassment is an umbrella term under which breach of contract, invasion of privacy, or defamation of character might fall. Basically, a person cannot harass or bully another individual online without breaking the law.
What should law firms remember about social media posts? It’s not difficult. Keep social media content relevant. Don’t share information about clients or rivals. Don’t even discuss clients or rivals online! All information shared online should be about the law. Keep posts informational to attract new clients. Stay online so new or current clients can find and message the firm without tearing out their hair. Online interactions should be fun and easy. If they’re not, your firm is making a mistake.