As existing clients, and potential clients, are furiously
tweeting and posting online, it is important for all litigators to
understand that those tweets and posts are discoverable in
litigation, often with disastrous consequences.
In an interesting article written by US attorney Cynthia A
Augello under the rubric When Cleaning up your Facebook can
lead to Dirty Consequences, the article states that "In
preparation for trial, a lawyer might advise a client to dress or
act a certain way in order to improve his or her appearance in the
court room. For instance, a lawyer might advise a client to appear
in court wearing business attire as opposed to sweatpants; or
maybe, tell a client to remove all non-traditional piercings. This
sort of cleaning up is a legally permissible way to positively
alter the appearance of the client. However, there does come a
point when an attorney's advisement to have a client appear
representable could actually result a violation of the legal
ethical rules that lawyers must follow and further result in
disastrous consequences for the lawyer and the client."
Lawyers must always be aware of their professional rules of
conduct and ethics which oblige them to disclose all evidence to
the presiding judge, magistrate or other official and to the
opposing party (even if such evidence would be adverse to the
clients' interest) unless such evidence is protected under the
attorney and client protection. As stated in the article, the
advent of Social media technology has given the term "Cleaning
up" a whole new meaning and big consequences for the client
and the lawyer.
The article recounts that this is exactly what happened in a
recent wrongful death action case in the United States: "There
attorney Matthew Murray was representing a client named Isaiah
Lester in a law suit against Allied Concrete for the death of Mr.
Murray's wife when one of Allied Concrete's cement trucks
tipped over on top of Lester's car killing his wife. During the
midst of the lawsuit, Allied's attorneys sought to obtain
screen shots and other types of information from Lester's
Facebook page. Upon this knowledge, Mr. Matthew instructed his
paralegal to advise Lester to clean up his Facebook page. In
response, Lester deleted 16 photos from his Facebook page,
including one photo depicting Lester holding a beer can wearing a
T-shirt that said, "I (heart) hot moms." These photos
were already recovered by the defense attorneys prior to the trial
and the jurors were also told about these photos."
The above is a stark warning to attorneys of the dangers of
instructing clients to "clean up" social media evidence
as there is no doubt that the Law Societies in South Africa would
act in the same way as the Court acted in the United States and
perhaps even more drastically in this strictly (but correctly)
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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There has been much discussion in the media regarding the use of virtual private networks (VPNs) in the United Arab Emirates (UAE), triggered by the recently announced Federal Law No. (12) of 2016 (the Amendment), which amends Federal Decree-Law No. (5) of 2012 on Combating Cybercrimes (the Law).
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