and Ethical Concerns:
A Litigation Primer
counsel need to comply with their
jurisdiction's own ethics rules. However, as
they relate to social media communications,
how to comply with them in the litigation
context is not always self-evident. Much
has been written on social media policy and
ethics as it relates to litigators, but there is
far less when it comes to in-house counsel's
ethical obligations in the litigation context.
The first question in-house counsel needs
to ask is whether his or her company utilizes
social media in any way and, if so, does the
company have an effective corporate social
media policy and/or handbook. An entity's
informed by whether the company utilizes
social media through company-sanctioned
social media platforms, as well as whether it
permit its employees to use their own social
media accounts to promote the company's
agenda or to engage in business-related
communications.
Social Media Policy
condones the use of communications by
its employees over social media to further
company objectives, three initial concerns
are implicated. First, a company may be
social media communications of its "non-
party" employees in litigation. A court's
finding of such a duty and the concomitant
failure to issue a "litigation hold" to preserve
same, could have disastrous implications
in a litigation such as fact preclusion, the
issuance of a negative inference at trial or
significant monetary sanctions. Second,
government regulators, for instance, in the
securities and food and drug areas, may
hold the company responsible for employee
social media communications that violate
law. Third, a formal social media policy,
for instance, would assist a company in
& Shore LLP, is the chair of the Commercial and
Federal Litigation Section of the New York State
Bar Association. He lectures on social media and
eDiscovery issues, and is the former co-chair
of the Social Media Committee of the Section
and one of the primary authors of the NYSBA's
acclaimed "Social Media Ethics Guidelines."
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212.922.9335 Fax
mberman@ganfershore.com