Lawyers Learn How Online Posts Can Come Back to Bite You
By Emily Green
Social media use is finding its way into many corners of life, including the courtroom, where it’s posing some challenges.
Just last week, a federal judge in New Orleans overturned the murder convictions of five police officers because the prosecutors posted anonymous comments online about the trial while it was happening.
It’s not clear a California judge would have done the same thing.
The New Orleans case highlighted the way lawyers trying to win public support for their cause can sometimes cross an ethical line – and it shows how that line has become nebulous with the rise of interactive and social media.
During the police trial, prosecutors using fake identities blasted the officers, accused in the Danziger Bridge shootings, on the website of the Times-Picayune newspaper. On appeal, Judge Kurt D. Englehardt said that was an ethical violation so egregious it deprived the officers of their right to a fair trial.
San Francisco attorney Mark L. Tuft, a partner with Cooper, White & Cooper LLP who advises lawyers on their ethical obligations, said the reversal of the convictions should serve as a wake-up call to lawyers to watch what they post.
“This is an extraordinary example of the impact of social media on the justice system,” Tuft said.
California Might Be Different
Even so, it’s not clear that a judge in California would have come to the same conclusion as the federal judge in New Orleans. Tuft said the laws in California governing social media use are different.
“It’s very difficult in California to overturn a conviction based upon prosecutorial misconduct unless the court finds that the conduct had a likely effect on the outcome of the case,” Tuft said.
The California Supreme Court has upheld convictions in cases even when prosecutors used media in questionable ways. In one, a prosecutor moonlighting as an author wrote a book that seemed based on the very case she was about to prosecute.
In another, a prosecutor gave information about a murder suspect to a Hollywood producer, who turned the material into the 2006 movie “Alpha Dog,” starring Justin Timberlake as the victim. The suspect later went on trial and was sentenced to life in prison.
While those convictions were upheld, lawyers say they have to be more careful.
“It’s kind of like the old Miranda warning where they said, ‘Whatever you say can be used against you,’ ’’ said San Francisco Public Defender Jeff Adachi. “Remember that whatever you post can be used against you, too.”
Intern’s Facebook Post Disaster
Adachi said his office has faced problems with employees using social media. A few years ago, an intern posted information on Facebook about a case she was working on.
“That was a wake-up call for us that we need to make sure that we train all of our staff not to post sensitive information,” he said. “Because what’s sensitive to one person may not be sensitive to another.”
And while many of the cases involving social media arise in the criminal context, some lawyers are also getting into trouble for social media use in civil and business contexts. Last week, the online review site Yelp sued a San Diego law firm because its lawyers allegedly posted fake reviews of the firm. The lawyers deny they did anything wrong.