the employee, as well as the company, for
defamation over social media; in prosecuting
or defending a trade secret or tortious
interference litigation; or in dealing with
a breach of contract action. The above
concerns highlight the need for even a small
company to have a social media policy,
especially if the company is concerned with
litigation or simply may need to monitor
employee social media communications for
employment and human resources purposes.
competitors of his or her company will be
monitoring all of its social media, as well
as the social media of its employees, to the
extent same is "public." Such review is even
more problematic for in-house counsel where
a company may soon be in or actually is in
litigation. Counsel need to be aware that
software exists which can "mine" such social
media communications and posts, which
information then can be used affirmatively
or defensively, allowing in-house counsel
to appropriate proper legal advice to the
company. In-house counsel thus need to be
vigilant when educating management and
employees about communicating over social
media. When appropriate, in-house counsel
should consider some type of internal
monitoring or hiring an outside professional
to perform such monitoring. In-house counsel
also should be aware that, while there is
some debate among legal ethicists, currently
there is no ethical prohibition to advising an
employee to consider increasing the security
setting on his or her social media account.
The touchstone in the event of the prospect
of litigation is to ensure that social media
communications are appropriately preserved,
and the precise form in which they should
be preserved needs to be addressed with
litigation counsel.
outside litigation counsel, naturally like
to conduct some of their own investigation
of a problem in order to get a feel for the
issues. That generally includes doing
some investigatory research of relevant
social media posts. However, the ethical
rules prohibiting litigation counsel from
investigation applies equally to in-house
counsel. In-house counsel, of course, may
view the "public" portion of a person's
social media profile or that person's "public"
posts, even if such person is represented by
counsel, subject to the potential following
exception. Because certain social media
networks may send an automatic message to
the person whose account is being viewed
which identifies the person viewing the
account, as well as other information about
such person, such communication could
be construed as improperly communicating
with a party in litigation if represented.
Obviously, in-house counsel may not contact
a represented person in an attempt to seek
to review the "restricted" portion of that
person's social media profile unless an
express authorization has been furnished
by the person's counsel. It also goes without
saying, as it relates to viewing a person's
social media account, in-house counsel shall
not order or direct his or her agent to engage
in conduct which he or she is not ethically
permitted to do.
In-house counsel, however, may request
permission to view the "restricted" portion
of an unrepresented person's social media
website or profile. However, depending on
the state, for instance, in-house counsel in so
doing may be ethically required to disclose
her full name and profile, occupation as an
attorney, the company in-house works for,
and the purpose for making or engaging
in such communication. In-house counsel
may not create a false profile in order to
mask her identity. Lastly, if the person who
has been communicated with, in order
to perhaps better understand who he or
she is responding to, requests additional
information from in-house counsel in
response to such request which sought
permission to view the person's social media
profile, in-house counsel must accurately
provide the information requested by the
person or withdraw her request for access.
In an investigation, in-house counsel
may review the contents of the "restricted"
portion of the social media profile or
"restricted" posts of a represented person
that was provided to counsel by, perhaps, a
fellow employee. However, depending on the
jurisdiction, that only may be permissible
as long as in-house counsel did not cause or
obtain "private" information from the
represented employee; (ii) invite the
represented person to take action without
the advice of his or her lawyer; or (iii)
otherwise overreach with respect to the
represented employee.
Employee's and Hired Employee's
Social Media Posts
executives often want to review a
prospective employee's "public" social
media posts before the person is hired.
However, it should come as no surprise
that if the employee is ultimately not
hired, depending on the posts reviewed,
such review could provide discovery
material in a discrimination lawsuit. As
such, in-house counsel needs to provide
careful guidance to human resource
professionals if such reviews are to be
undertaken, and consideration must be
given as to documenting what social media,
in fact, was actually reviewed. Further,
with respect to prospective and current
employees, requesting their social media
passwords or usernames in order to examine
their "private" posts is fraught will peril.
In-house counsel need to first speak with
outside counsel in each state where the
company operates to determine whether
there is legislation proscribing such
requests made to perspective or current
employees. In addition to the numerous
states which have already passed legislation
addressing what may be asked of such
individuals, in 2016 alone, legislation has
been introduced or is pending in at least
14 states and it has been passed in Virginia
addressing this specific issue. Also, as it
relates to students, ranging from primary
school to college age students, outside
counsel need to be consulted as specific
laws proscribing what can asked exist
throughout the United States.
What does all of this mean? In-house
counsel must be vigilant in attempting
to manage their company's social media
communication in our litigious world, but,
in doing so, they need to be careful to
ensure that lurking, but not oft appreciated,
ethical rules are properly adhered to.