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My Attorney’s on Facebook: Maintaining Confidentiality in a Digital World

We live in a world inundated with social media, exist in a society that prefers texting to calling. Businesses have known the importance of webpages for years but have expanded their presence further by the creation of Instagram and Twitter accounts. Yes, your attorney probably has a Facebook page. While recognizing the ease with which we can now communicate, how does this affect people who require attorney-client confidentiality?

When a person has a meeting with their attorney in person or on the phone, there is an understood privilege that what is discussed is confidential. In fact, the attorney-client privilege is one of the oldest recognized privileges in our judicial system, dating back to the Roman Republic. So, what happens when you send a text to your lawyer or perhaps post something on their social media page? Here is the important part of this privilege- if communication is witnessed by a third party, the information is no longer confidential.

Sending a text to an attorney may seem like the easiest way to communicate, but you are sending confidential information in a very gray area of the law. Texts can be visible to someone standing nearby and may be inadvertently read. You may leave your phone unlocked and lying out where others can access it. Imagine a situation where you are about to start a bitter custody dispute and your spouse has installed spying software on your phone and is able to read and copy the texts you have sent to your attorney. If your phone has been issued to you by work, you should not have an expectation of privacy when you send and receive messages.

There have been cases where emails from a work computer were considered privileged, as the employee had set up personal passwords and felt a reasonable sense of privacy; however, there have also been rulings that emails composed at work are not confidential and are discoverable, regardless to whom the communication was sent. Communication with your lawyer from your work email or computer could lead to legal complications.

As for social media, courts have ruled that social media posts are not confidential. Obviously posting to an attorney’s wall on Facebook would not be private, but what about sending a private message? In McMillen v. Hummingbird Speedway, the courts held that information on Facebook is discoverable because of the ability to forward messages and, most importantly, that Facebook has access to all communication on their site. Facebook is a third party and thus your attorney-client privilege would be broken.

So while you may find texting, emailing from work, or using social media as efficient forms of communication, be wary of what you send. In order to maintain privacy and confidentiality with your attorney, a phone call or meeting in person are your best options at preserving your privacy.

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