Living in a Social Media World:  Potentials and Pitfalls for Family Law Cases and Attorneys

by Jeffrey Fiorello and Christine C. Fitzgerald        

     While social media was once looked upon as something purely social (a way to stay connected with friends), it has increasingly become an integral part of daily life. The information that is put out online can have implications far beyond staying connected with friends. This article will attempt to explore the use of social media for professional marketing purposes, and for tactical advantages in advocating for clients. There are implications, both positive and negative, that social media can have on the daily practice of family law. The goal of this article is to provoke a further exploration of social media in marketing for family lawyers and in representing family law clients.

Potentials

     Social media is a tool that can be used to assist clients in connection with divorce cases and various other related family law matters. Additionally, social media is a tool that attorneys can use to help bolster the practice of family law. However, there are several things that must be considered in the use of social media to either assist clients or to aid in marketing a family law practice.

Statistics

     Statistics show that 75 percent of male internet users are on Facebook as well as 83 percent of female internet users.[1] Additionally, according to statistics, Facebook is the most widely used social media platform, with 79 percent of American internet users.[2] Instagram is the second most widely used platform, with 32 percent of American internet users.[3] Interestingly, the third most used social media platform among American internet users, is Pinterest, with 31 percent of American internet users. Among others are LinkedIn with 29 percent of users and Twitter with 28 percent of users.[4] The statistics make it clear that people are using social media regularly. With all of this information online, how can it be used in family law practices and cases?

Discovery

     Electronically stored information (including information found on social media) is discoverable. Pursuant to the New Jersey Rules of Court, Rule 4:18-1 (a):

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     Any Party may serve on any other party a request (1) to produce and permit the party making the request, or someone acting on behalf of that party, to inspect, copy, test, or sample any designated documents (including writings, drawings, graphs, charts, photographs, sound recordings, images, electronically stored information, and any other data or data compilations stored in any medium from which information can be obtained and translated, if necessary, by the respondent into reasonably usable form), …[5]

***

     If the information obtained in discovery is deemed relevant, it can be used to help bolster a family law case. Pursuant to the New Jersey Rules of Evidence, N.J.R.E. 401 provides that: “‘Relevant evidence” means evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action.”[6]

     In a social media world, people post information publicly through different social media accounts, which can be used against them in their divorce proceeding. It is important to counsel clients to seek out their spouses’ social media accounts to find any relevant and/or pertinent information that may bolster the case and support the various positions advocated on their behalf. For example, evidence of a subsequent relationship on social media can be used in a case to establish cohabitation, in an effort to terminate the payor’s alimony obligations. Furthermore, a parties’ behavior, as displayed on social media, may be used to gain an edge in a custody or parenting time dispute. Clients should be circumspect of the things they chose to make public by posting on social media, as this information may be used to the other side’s benefit.

Social Media and Procedure

     But it is not just the information that can be found in a social media account that can be useful in family law proceedings (or any court proceedings for that matter). There is precedent for the use of social media as a mode of service. In the matter of K.A. and K.I.A. v. J.L., the court ruled, in a chancery general equity matter, that an out-of-state party could be served through publication on Facebook.[7] In the matter of K.A. and K.I.A. v. J.L., the defendant, a biological parent, who had no relationship with their biological child (who had been adopted to the plaintiffs), was attempting to contact that child, through social media.[8] The biological parent went on to post photographs of the child on their social media accounts (Facebook and Instagram), in which he identified the child, as “his” biological child.[9] The adopted parents filed an application in the Chancery Division (General Equity) seeking to enjoin the defendant-biological parent from continuing to contact the child.[10] The defendant was living in Pennsylvania, and the plaintiffs were unable to effectuate service personally.[11] The court, in this matter, permitted service by publication through Facebook.[12] In issuing its opinion, the court in K.A. noted that:

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     There are only a handful of unpublished decisions, mostly from Federal District Courts, that have addressed the issue of service of process being accomplished through social media, with there being an almost even split between those decisions approving it and those rejecting it. The cases permitting such service have done so only on condition that the papers commencing the lawsuit be served on the defendant by another method as well.[13]

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     In a social media world, where print media is becoming less relevant, the old standard of ‘notice by publication’ may no longer be sufficient. Today, social media is not only used for social purposes, but, in limited instances, for official purposes. Times change, and, along with those changes, the practice of law must evolve to keep up with technology and with relevant trends. There is e-filing in various divisions in New Jersey, something that years ago was unforeseeable and some views unfathomable. It may only be a matter of time before social media platforms are more commonplace for purposes such as service of process and more. Family law practitioners must think outside the box to use social media as a helpful tool.

Marketing Opportunities

     With so many people using social media, it may seem that the marketing potential online is limitless. However, it is important that precautions are taken in the use of social media to promote a family law practice.

     Attorneys must first look at their professional social media presence as advertising, and must seek to comply with the ethical rules restricting attorney advertising. In doing so, attorneys can successfully use social media to increase online presence in their practice, thereby bolstering their reputation within the online community and beyond. The days of pure word of mouth and searching for a lawyer in the Yellow Pages, or through other traditional publications, has become a thing of the past. More and more clients are searching for attorneys online. As such, it is important to keep up with the trends to maintain credibility while attracting clients.

     In maintaining a healthy online social media presence, a careful consideration of the Rules of Professional Conduct (RPCs) is essential to ensure that the social media content will not result in any unwanted ethical issues. A few general rules should be followed in all online social media postings to avoid any issues:

  1. Statements contained in social media posts must be truthful, so they comply with the requirements of RPC 4.1. This rule should be self-explanatory.
  2. Attorneys must avoid holding themselves out as experts or specialists in a manner that may violate RPC 7.1 and/or 7.4. Remember the same rules that apply to a firm’s websites and other forms of advertising apply to social media. RPC 7.4 provides in part “…[a] lawyer may not … state or imply that the lawyer has been recognized or certified as a specialist in a particular field of law except as provided …” in sections b, c and d of rule 7.4.[14] Notwithstanding this rule, both LinkedIn and AVVO invite users to identify “specialties” or “expertise” in their profiles, or permit others to identify (or endorse) a user as a specialist or expert to other users. This may be problematic for lawyers as users.
  3. The solicitation of clients is clearly a violation of RPC 7.3. Accordingly, lawyers must be careful, in their social media content, to avoid language that could be perceived as a solicitation.
  4. Be certain not to engage in communication with a represented party, which may violate RPC 4.2, and be cautious in communications with unrepresented persons, so as to avoid issues with RPC 4.3.
  5. A void creating an unwanted attorney-client relationship. RPC 1.18 addresses communications with perspective clients. Certain social media platforms encourage a discourse between the public (which may be a potential client) and the lawyer. If those communications rise to the level of having created an attorney-client relationship, certain obligations will attach to the relationship, which if unaddressed could have a detrimental impact on the attorney.

     To successfully establish a social media presence, and avoid any issues that might give rise to ethical violations, attorneys must effectively market their law firm or themselves within the boundaries of the RPCs. Social media has become an essential element of marketing strategy for many (if not most) attorneys. It can be used to great effect.

Pitfalls

     There are many ways that social media use can create pitfalls for family law clients and for lawyers. A study published in the Computer in Human Behavior journal concluded that social media use increased the rate of divorce in the United States.[15] Specifically, the researchers from Boston University and Pontificia Universidad Católica de Chile studied Facebook usage and divorce in 43 of the 50 States in the United States and determined that a 20 percent increase in Facebook use in any given state correlated with a 2.2 percent increase in divorce rate for that same state. As this study and the trends of social media usage show, social media impacts families and the practice of family law.

     From the start of any family law matter, practitioners need to address the litigant’s social media use to ensure the litigant does not fall prey to the potential mistakes that can be made on social media. As discussed above, social media is discoverable, admissible, subject to spoliation of evidence rules, and can even constitute a domestic violence act. A litigant’s poor judgment in using social media can harm his or her case before the case even begins.

Discovery and Social Media

     There are two distinct problems that clients face in dealing with social media and discovery. The first issue deals with how the client obtained the information or discovery. The second problem deals with the preservation of the social media content.

     Social media content is electronically stored information that, in New Jersey, is protected by both federal and state laws, including, but not limited to, the Stored Communication Act[16] and New Jersey Wiretap and Electronic Surveillance Control Act (wiretap statute).[17] This creates the potential for a client to commit a crime by attempting to obtain evidence against his or her spouse during the divorce litigation if the client is not careful. Specifically, N.J.S.A. 2A:156A-3(a) provides that:

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     a person is guilty of a crime of the fourth degree if he (1) knowingly accesses without authorization a facility through which an electric communication service is provided or exceeds an authorization to access that facility, and (2) thereby obtains, alters or prevents authorized access to a wire or electronic communication while the communication is in electronic storage.

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     “Without authorization” has been held to mean “using a computer from which one has been prohibited, or using another’s password or code without permission.”[18] In other words, when a litigant uses his or her spouse’s password or code to access a social media account or computer of his or her spouse to obtain the relevant discoverable information, that litigant has potentially committed a fourth degree crime under N.J.S.A. 2A:156-3(a). In order to prevent a client from committing a violation of the wiretap statute, family law attorneys must warn their clients, at the beginning of the litigation, about the potential pitfalls of accessing his or her spouse’s electronically stored information.

     Since electronically stored information is discoverable,[19] another pitfall that commonly occurs is spoliation of evidence. In New Jersey, “[s]poliation is the concealment or destruction of evidence relevant to litigation.”[20] Potential remedies for the spoliation of evidence include sanctions for failure to provide discovery or the court finding an adverse inference against the party that destroyed or concealed evidence.[21] Family law attorneys should caution litigants against deleting or destroying social media content and electronically stored information, such as deleting their social media accounts.

     Social media content or information can be relevant to a family law case in many contexts. Some instances may include custody, financial support, imputation of income, or adultery. In a custody proceeding, a Facebook photo of a parent at an inappropriate place with the children could be used to indicate poor judgment as addressed previously herein. A spouse’s check-in on Foursquare at a four-star resort in Bermuda could be used to show that the spouse is able to pay support. Similarly, a party’s need for support can be undermined by a simple photograph showing his or her dining out at an expensive upscale restaurant, or even frequent dining at more causal restaurants. Additionally, a spouse’s claim of inability to work due to lack of marketable skills can be contradicted by that spouse’s own LinkedIn profile touting their many marketable skills. LinkedIn profiles also show each parties’ work history and skills for purposes calculating an imputation of income. Moreover, a relationship status update or photographs of a spouse with another individual may corroborate an allegation of adultery or, as stated previously, cohabitation. Merely setting a security level to private does not necessarily protect the client from the discovery of his or her social media content.

Domestic Violence and Social Media

     Another pitfall to which family law litigants often fall prey is believing their communication online or over social media is somehow protected from them being accused of harassment. In order to keep up with the ever-changing social media world, the New Jersey Legislature added the crime of cyber-harassment to the Criminal Code in 2014.[22] N.J.S.A. 2C:33-4.1 states, in pertinent part, that

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     (a) a person commits the crime of cyber-harassment if, while making a communication in an online capacity via any electronic device or through a social networking site and with the purpose to harass another, the person: (1) threatens to inflict injury or physical harm to any person or property of any person; (2) knowingly sends, posts, comments, requests, suggests or proposes any lewd, indecent, or obscene material to or about a person with the intent to emotionally harm a reasonable person or place a reasonable person in fear of physical or emotional harm to his persons; or threatens to commit any crime against the person or person’s property.

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     N.J.S.A. 2C33-4.1(a)(2) makes it clear that a person who posts about another person on social media may be guilty of cyber-harassment.  Given that the majority of litigants are using some form of social media, it has become extremely vital that clients are advised to refrain from posting on social media about the proceedings in order to avoid any potential domestic violence claims for cyber-harassment. Additionally, family law attorneys should advise clients that any communication or contact, even through social media or in electronic form, is a violation of a temporary or final restraining order unless specifically permitted by the court order.

Ethical Considerations with Social Media for Family Law Attorneys

     Attorneys have a high standard of professional responsibility, which in New Jersey is governed by the Rules of Professional Conduct. Family law attorneys deal with personal issues such as finances, children, and marital discord on a daily basis. These delicate issues make ethical principles even more important to litigants. Although social media has become commonplace for attorneys when it comes to networking, advertising and obtaining information about an adverse party, it is not without its perils. In a social media world, family law practitioners must exercise restraint when using their social media account for these purposes.

     Recently, two New Jersey attorneys faced disciplinary charges over their use of social media.[23] In Robertelli v. New Jersey Office of Attorney Ethics, the attorneys instructed their paralegal to ‘friend’ an adverse party on social media in an attempt to gain information about the party.[24] The attorneys were accused of violating were RPC 4.2—Communication with Persons Represented by Counsel; RPC 5.1—Responsibilities of Partners, Supervisory Lawyers, and Law Firms; RPC 5.3—Responsibilities Regarding Nonlawyer Assistance; and RPC 8.4—Misconduct.[25] The grievance was initially filed by the adverse party with the district ethics committee (DEC), which determined that, on its face, the grievance did not constitute a violation of the RPCs and declined to docket the matter.[26] The grievant appealed to the Office of Attorney Ethics (OAE).[27] The OAE determined that the allegations were serious enough to warrant further investigation.[28] The respondent attorneys challenged whether the OAE has the authority to investigate an ethical grievance when the DEC previously declined.[29] The New Jersey Supreme Court ultimately held that the director of the OAE has the authority to review a grievance after a DEC secretary has declined to docket it, and that the OAE may proceed to prosecute the alleged misconduct.[30] Although the matter is still pending, this case highlights the need for attorneys to exercise restraint when using the social media world to gain information about an adverse party.

     The use of social media for networking and personal use can also become a pitfall for family law attorneys. RPC 1.6(a)—Confidentiality provides, in pertinent part, that “a lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraphs (b), (c), and (d).” The exceptions noted in RPC 1.6 (b), (c) and (d) relate specifically to disclosures made to the proper authorities in order to prevent a criminal, illegal or fraudulent act, or to a person threatened in order to protect that person from death, substantial bodily harm, substantial financial injury, or substantial property loss.

     In an advisory opinion, the New Jersey Supreme Court stated “this Rule expands the scope of protected information to include all information related to the representation, regardless of the source or whether the client has requested it be kept confidential or whether disclosure of the information would be embarrassing or detrimental to the client.”[31] Further, RPC 1.6 covers all information given by the client, as well as information learned from third parties or from the litigation.[32] In the plain text of RPC 1.6(a), there is no exception for the disclosure of confidential client information when the client’s name is not used. Although there are currently no advisory opinions on the issue of posting client information on an attorney’s personal social media account, family law attorneys should exercise restraint in posting about cases and about clients on the attorney’s personal social media accounts. Such disclosure of confidential information that an attorney learns from his or her client or in the course of the litigation is a violation of confidentiality under the plain text of RPC 1.6.

Conclusion

     The social media world presents society with a unique opportunity to meet people, connect with old friends and colleagues, keep abreast of current events and trends, share professional and personal news with others, investigate in litigation. For family law attorneys, social media provides both potentials and pitfalls. As social media usage increases, family law attorneys must exercise restraint and caution in its use to maximize the potential without falling prey to any pitfalls.

Jeffrey Fiorello is a partner with the firm of Fiorello, Puccio & Fiorello, LLC., located in Wayne. Christine C. Fitzgerald is with the firm of Seiden Family Law, LLC, located in Cranford. 

[1] The Word Stream Blog: “40 Essential Social Media Marketing Statistics for 2018” (Mary Lister, April 18, 2018).

[2] Id.

[3] Id.

[4] Id.

[5] New Jersey Court Rules, Rule 4:18-1(a).

[6] New Jersey Rule of Evidence Rule 401.

[7] K.A. and K.I.A. v. J.L., 450 N.J.Super. 247 (Ch. Div. 2016).

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Id. at 254.

[14] Rules of Professional Conduct. RPC 7.4(a)

[15] Sebastian Valenzuela, Daniel Halpern, and James E. Katz, Computers in Human Behavior, July 2014; vol. 36, pp. 94-101

[16] 18 U.S.C. 2701 et seq.

[17] N.J.S.A. 2A:156A-3

[18] White v. White, 781 A. 2d 85, 91 (Ch. Div. 2001) citing Sherman & Co v. Salton Maxim Housewares, Inc., 94 F. Supp. 817 (E.D. Mich. 2000).

[19] R. 4:18-1(a)

[20] State v. Cullen, 424 N.J. Super. 566, 587 (App. Div. 2012) certif. denied, 213 N.J. 397 (2013) citing Rosenblit v. Zimmerman, 166 N.J. 391, 400-01 (2001)

[21] Robertet Flavors, Inc. v. Tri-Form Const., Inc., 203 N.J. 252, 272 (2010)

[22] N.J.S.A. 2C:33-4.1

[23] Robertelli v. New Jersey Office of Attorney Ethics, 134 A.3d 963 (2016)

[24] Id. at 965

[25] Id. at 966

[26] Id. at 965

[27] Id. at 966

[28] Id.

[29] Id.

[30] Id. at 975

[31] In re Advisory Opinion 544 of N.J. Sup. Court, 103 N.J. 399, 406 (1986)

[32]Michels, Current N.J. Attorney Ethics, Comment 15:2-2 on RPC 1.6 (2018) citing ABA Model Rules of Professional Conduct Rule 1.6 comment (2000)

 Original published in: New Jersey Family Lawyer, Vol. 38, No. 6, December 2018: Living in a Social Media World: Potentials and Pitfalls for Family Law Cases and Attorneys by Jeffrey Fiorello and Christine C. Fitzgerald