By MATT CHANDLER
Buffalo Law Journal

"Facebook" has become a verb, those on Twitter like to "tweet" and MySpace is now everybody's space as online social networking continues to grow in popularity.

Facebook is visited by more than 225 million unique viewers each month. Add another 125 million at MySpace and throw in 6 million more registered users at Twitter, and you have a whole lot of personal thoughts, photos and other information hurling through cyberspace.

OSN - shorthand for online social networking - may be commonplace in America today, but does the phenomenon expose people to the possibility of having damning personal information used against them in a future legal matter?

The case of Florida mom Casey Anthony, who had a penchant for posting party photos online and now faces the death penalty, charged with murdering her infant daughter, has garnered international headlines as her lawyer has fought to keep the incriminating photos out of court.

Do those photos prove that she murdered her daughter? They don't have to in order to be damaging, say many area attorneys we spoke with.

Moreover, while the world waits to see how evidence from social-networking sites may impact the prosecutions of defendants such as Anthony and the alleged "Craigslist killer," Philip Markoff, many in the Buffalo legal community say this is a growing problem that can have major ramifications in all types of court proceedings.


Rod Personius, a former assistant U.S. attorney,  said he recently had the opportunity to use information gathered from an OSN site in a litigation matter, "to the detriment of another party." Now a partner in Personius Melber LLP, he said people have grown so accustomed to allowing details of their life to be shared that they don't stop to think about potential consequences.

"They are putting words in a form that otherwise would not be memorialized," he said, "and when you have the immediate thoughts of an individual for the whole world to see, it can be very harmful to a litigant."

Personius said social networking has changed the legal landscape, noting that he now asks potential clients as part of his intake interview about their online practices.

"One thing we do now, both with litigants and with other lawyers, is do a Google search," he said. "The amount of information that is available that way is just amazing." Personius said with the growing number of people posting up-to-the-minute details of their lives online, he sees these sites as "a very fertile ground for gaining information" - information that just a decade ago was unlikely to ever come up in a court case.


Is it realistic to tell clients or potential clients to filter their lives before posting them online, or, with hundreds of millions of users on the major OSN sites, is it akin to shutting the barn door once the horse is loose?

Attorney Glenn Murray, a solo practitioner who specializes in DWI defense, said it is incumbent on attorneys to warn their clients of the risks associated with online networking.

"I caution them and tell them they should be aware of and avoid even comments that may seem harmless," Murray said. "It could make a huge difference in the outcome of their case."

Murray said he's familiar with cases where comments made on sites such as Facebook and MySpace have "made the difference of someone going to jail for a very long time rather than a little bit of time," and created a nightmare for defense attorneys. He warns that while they may not post things that directly incriminate them, many OSN users share photos and statements that can be used to discredit them in a criminal matter.

"It's not hard for prosecutors to harvest this kind of damaging information," Murray said. "It's not like they even have to draw up a subpoena; they can just turn on their computer."

He said what is posted on sites such as Facebook isn't protected by confidentiality laws, making it fair game for prosecutors. Playing on words from the Miranda warning, Murray said he reminds his clients, "Anything you say on social networking can and will be used against you."


The potential fallout from sharing too much information isn't limited to criminal cases.

Another lawyer, Hanna Dash, said that while her work focuses chiefly on insurance work, she regularly tracks down personal information from OSN outlets to use to her clients' advantage.

"We start with basic searches," said the Rupp Baase Pfalzgraf Cunningham & Coppola LLC partner. "We'll do a Google search, we'll search MySpace, we'll search for basic background information, and you can find a lot out there."

Dash said she and her colleagues primarily use their searches to gather information on their opponent in a case, but she sees a future where firms will utilize the trough of public information to track opponents, clients and other firms.

"There's so much information that you can get on the Internet about people," she said, "and we live in such a world where people post a status message on Facebook every 10 minutes."


One area lawyer said he believes plaintiffs' attorneys can make a strong case that statements posted on OSN sites should not be admissible in court matters.

"The big question I would have is whether or not someone could get onto my client's Facebook page and post things attributed to my client that, in fact, my client never said," said Steve Foley of Paul William Beltz PC. "I suspect that there would have to be a time at trial, before that (issue) came before a jury, where it would have to be determined beyond a doubt that the statements could only have been put there by the individual."

The challenge Foley sees is getting attorneys, judges and clients on the same page.

"The courts aren't there yet," he said. "They are infamously slow in adapting to technological changes, and I think that is the case here as well."

To tweet or not to tweet: Firms weigh in

Though attorneys may cringe when clients reveal that they have been "tweeting," "facebooking" and "myspacing" the details of their life for all to see, what about lawyers who have embraced social networking? How does a firm balance the rights of its employees with potential fallout that can spill over into their office and impact their clients?

Of the half-dozen firms we contacted, none have a set policy governing social networking, though several said they are considering such changes.

Ann Evanko, president and CEO of Hurwitz & Fine PC, says her firm is updating its policies to reflect the surge in social networking.

"We do have an Internet-use policy that allows us to go in and monitor staff usage of sites that are not business-related," she says. "It's very important to know what people are saying in connection with the law firm, and I think it could affect our business clientele - and yet there is a balance that has to be maintained between personal and work matters, along with First Amendment(-protected) free speech."

Among the possible policy changes Evanko envisions is limiting the use of the company name in personal affairs, including on a worker's Facebook page.

Another firm, Rupp Baase Pfalzgraf Cunningham & Coppola LLP, is among those law firms that are embracing the medium as a way to improve client relations and service. The firm maintains a group on Facebook and has a feed on Twitter to keep clients up to speed on the latest happenings.  

Danielle Shainbrown, a Rupp Baase associate, says she not only uses Facebook to communicate with clients, she maintains one page where both her personal contacts and business clients are commingled.

"For the most part I work with small businesses, and I use Facebook to keep in touch with my corporate clients and to have another avenue of communication with them," she says. Shainbrown says she believes in being available to her clients 24 hours a day and, in conjunction with other technologies, Facebook simply makes that easier.

"For a variety of clients, it keeps me in their general consciousness," she said. "They will log into Facebook because they use it for business purposes, and they will see me as a ‘friend' on there."

Shainbrown says she enjoys the fact that social networking affords her the chance to develop a more personal relationship with her clients, though she sets boundaries to avoid any potential problems from arising.

"You have to use a networking site like Facebook with an eye toward who's seeing it," she says. "If you're consciously making contacts with business clients, you can't use it without thinking first."  

- Matt Chandler