The North Carolina State Bar requires a lawyer to advise clients about information on social media if the information and postings on social media are relevant and material to the client’s representation. A lawyer may advise a client to remove information on social media if doing so is not illegal or does not result in the information be destroyed or deleted.
If you post to Facebook, Reddit, Instagram, or if you Tweet, blog, post to YouTube, or use any other form of social media, you need to be aware that whatever you write or post (or anything in your history or timeline) will likely become known during the course of your family law case. Searches and investigation into your online presence is now standard practice. Your passwords and account credentials can be demanded in discovery. Login information is not privileged information and, in all probability, your lawyer will not be able to mount a successful challenge to keep login credentials from being disclosed.
For all online accounts, you should immediately verify that all your settings are on PRIVATE (the highest setting possible) and that nothing is public. Even with the highest privacy settings, you should only write or post items that cannot be used to hurt you. Moreover, you should DEACTIVATE all your accounts. Deactivate does not mean delete. DO NOT delete or destroy any accounts, account history, postings, writings, video, or anything else you may have posted online.
After consulting with your attorney, if you decide to keep your site(s) open, then please follow these recommendations:
- Allow anyone to become a “friend” on a website like Facebook unless you are absolutely sure you know that person.
- Post any photographs or video of yourself (or enable others to “tag” you).
- Write or disclose anything about yourself, your personal or professional life, your friends, family, spouse, or any other third party that you will regret when it is displayed in front of a judge, or for which you would have to apologize for, or which can be interpreted as an “admission” against your interest, or anything else that can cast you in a negative light.
- Send e-mails, texts, posts or make any written statements regarding your case to anyone except your lawyers and our consultants.
- Participate in blogs, chat-rooms, or message boards.
Regardless of the precautions you may take, your online presence can be a treasure trove of information to be used against you. Your online material can be obtained and used to embarrass, humiliate or hurt you, or to compromise your legal claim and interests. Photographs, videos, and comments by you or your friends can be discovered and used.
We understand that social media can be a quick and useful way to communicate with family and friends, and that asking you to limit your social networking is a great inconvenience. However, we want you to be fully informed about the consequences of using social media. You should expect that any text you send, or any message, photo, video you post will be used against you in court.
Portions of this handout were reprinted with permission from War of the Roses in the Digital Age, Part II, The Roses Go to Court. (North Carolina Bar Association Foundation, September 11, 2015)