In my previous post, I discussed the Virginia case (Lester v. Allied Concrete) where an attorney and client were sanctioned for deleting a Facebook account and providing misleading answers regarding the existence of a Facebook account among other questionable behavior in the case. The next logical question is “what should I tell my client?”

Be warned that my opinion is NOT the opinion of the North Carolina State Bar. I can have an opinion, but let’s face it, my opinion carries little weight. At the end of the day, only the State Bar or a Judge can levy sanctions or decide your fate. Before you answer any question of this nature, you should review the ethical rules and call the State Bar to obtain guidance.

Now, back to my opinion . . . if a client asks you if he should edit his past social media, I would suggest that you talk to him about the Virginia case and any other cases you can locate on the issue. I would not tell the client to destroy anything. I would also advise him about the doctrine of spoliation of evidence and discuss steps he should take to preserve evidence. A client may be frustrated that you are not “helping” him out, and the client may even fire you as an attorney. Consider that firing a blessing as you do not want to choose your client’s goals over your ethical obligations.

When I talk to my client about social media, I address future behaviors.  I believe that unless there is some type of smoking gun on these types of forums, a client can explain any previous questionable behaviors. For example, if a client tweeted that her husband is “a tool of a parent” because he “puts his Wh*re first over their son,” I would have the client testify that she was mad and spouted off thoughts without thinking.  I would also have her testify about how she has learned that is not appropriate behavior, etc. Asking for forgiveness can go a long way especially if there is not a lengthy history of these actions.

For most lawyers, social media is the next frontier. When we start in a new frontier, some lawyers can be flippant about the significance of the area. Being flippant in this area could cost you as it did in the attorney in the Lester case.

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You have scheduled your Initial Consultation with one of our attorneys, what should you expect at your appointment?  Please plan to block out at least an hour and a half for this appointment. On average this is how long a consultation should last with one of our attorneys.  If you are unable to keep your appointment for any reason, please call the office to either cancel or reschedule. Cindy and Chris are happy to help you with this. Also, expect us to call the day before the appointment to confirm the time and that you have directions to our office.

When you arrive to our office either Chris or Cindy will greet you.  She will get you settled in one of our conference rooms.  Once you are seated, she will go over our Client Intake Form with you.  This form gives our office information such as addresses, phone numbers, email addresses, and dates of birth.  After the intake form is complete, she will process the payment for the appointment and ask if you have brought any documents with you that you would like your attorney to review.  If you do, she will make copies of the documents for the attorney’s review.

Chris or Cindy will then bring your file to the assigned attorney, who will review your file briefly before coming in to meet with you.  During the meeting with either Ms. Frye or Ms. Bruce, they will go into greater detail of your situation and what your goals are.  After the consultation, you will receive a business card with the attorney that you have met.  If you have a question a few days after your appointment, our attorneys are happy to answer them via email at no additional charge.

At Frye Law Offices, we pride ourselves on having an amazing support staff. Clients have always told us that our staff has been professional, empathetic, and effective. From the first moment you contact our firm, you will find the knowledge, experience and personal attention at the time when you need it most. Please call us at 919.846.8807.

**Written by Christine Universal

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A Connecticut judge recently ordered divorcing parties to exchange passwords for Facebook and dating websites so that attorneys can gather information for the pending litigation. The Order requiring the exchange of information did clarify that the password was to remain with the attorneys and that parties were not to post anything to the other party’s website with that password information.

I must say that this is a new step to me. I have often had clients obtain information from the other party’s Facebook or other social media source; however, I have never thought of asking the other side to turn over his or her passwords so that I could have full access to the account and account history.

Generally, when cases are in the discovery phase, which means the information finding part of litigation, parties are asked to turn over material that responds to the divorce request. For example, a party may be asked to turn over all audio recordings that he/she has of the other party. In financial cases, bank statements are often provided, not access codes for online banking! The request in this case was to turn over a different type of information, which is very interesting.

Maybe with this different type of medium (social media), Judges will take a different look at what is required to be turned over as part of the discovery process. I cannot predict the future on where social media and divorce will go, but this case is just another reason why I tell my clients that he/she should just sign off social media for the duration of litigation.

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Time Magazine recently published an article entitled, “Facebook and Divorce: Airing the Dirty Laundry” which is an excellent article that I recommend to anyone divorcing or considering divorce. Remember that everything  you post wills stay on the web, which is why I suggest you be careful about what you post even when you are considering a separation. Recently, our firm has used MySpace pictures in a custody trial to demonstrate that “devoted mom” was actually a party animal who left her child with babysitters. Along with this evidence and other items, our client was able to go from being a weekend dad to being an equal caretaker of his daughter.

Here is a link to the full article: www.time.com/time/magazine/article/0,9171,1904147,00.html

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