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09.02.2022

Friend request: how to use social networks to protect your rights and interests in court

Most likely, this comment will largely be devoted to the anti-topic – how not to use your social networks to protect other people's rights and interests in court. This material is aimed primarily at advocates, whose activities are more regulated than lawyers.

So, lawyers already exist in a kind of "matrix" that surrounds them from all sides: posting information about themselves in social networks, direct advertising of themselves as a specialist, commenting on precedents and legislation, as well as, possibly, active public and/or political activity. In all these areas, social networks occupy an important place. That is, the presence of a page on a social network, its filling with certain content (content), comments and/or responses to comments – all this already affects lawyers, individualizing and characterizing them.
At the same time, such a "digital" trail in social networks as commenting on cases handled by a lawyer should be singled out as a separate block. I have come across an unexpected effect when a client, having requested friendship with his lawyer and rejoiced at the victory in the court of first instance, publishes a post on social networks describing the legal strategy he used (for example, from capturing evidence) and, of course, mentioning the lawyer as a friend…
Regulation
An important aspect of a lawyer's professional activity "social networks" is to some extent regulated by Art. 53, 57-60 of the Rules of Advocate Ethics (with amendments made in 2017), but they only generally regulate the establishment of contacts by a lawyer in social networks, obliging to exclude the possibility of a conflict of interests with clients, colleagues, judges, procedural opponents, by other persons and their associations.
Therefore, when receiving a friend request, as well as analyzing social networks and contacts that can help protect rights and interests in court, lawyers should always adhere to five basic principles: professionalism, restraint and correctness, dignity, security and corporateness. Due to non-compliance with the specified rules, there are already known cases when lawyers are brought to disciplinary responsibility precisely for posts in social networks[1].
Own assessment
So, what drives us when we see a friend request: business development (new clients), development of oneself as a specialist (exchange of knowledge), development of oneself as a person (exchange of rumors, news in the profession, imitating someone), friendly relations (want to constantly to be in touch with a person you like) etc. Therefore, when receiving such a request, the lawyer should be aware of one or more of the specified goals that may be achieved as a result of accepting this request. However, this may not necessarily be a valid purpose for making contact.
First, it is worth refraining from uncontrolled addition of "virtual" friends just to increase their number, and it is better to focus on the "quality" of such contacts. In this way, you will be protected from using a friend request sent to you and accepted to protect a client who is not yours. An example from my own experience – I "quarantine" a friend request for a certain time (if the purpose was to use a friend request in a specific case with a purpose other than the one indicated above, then over time it will become irrelevant).
Secondly, Ukraine has not yet developed an analysis of the presence of judges, prosecutors, and opponents' lawyers in social networks in the process of preparing a case for court. At the same time, it should be recognized that in the event of the introduction of a jury trial for certain categories of cases, the analysis of social networks and juror profiles can become a valuable tool for a lawyer to build a defense strategy.
Thirdly, it is necessary to use social networks with caution for one of the possible scenarios of protecting the rights and interests of your client in court (for example, for impeachment of a judge, witness, expert, etc.), because citing only this fact (for example, the presence of an expert among your opponent's friends) , without additional justification, will probably be recognized as groundless, and your actions will be an abuse of procedural rights.
Conclusions
Social media isn't just about friends and new clients, it's also about friend requests and contacts that can be used against you. It looks very unethical when a lawyer, sending a friend request on social networks in order to achieve a goal in court, then justifies the alleged conflict of interest. It is necessary to responsibly add people about whom you know nothing or who create an impression of superficial profiles (bots) to your contacts. You should also make it a habit to warn the client about unwanted commenting on your own social network about the court case you are conducting and about restrained communication with the opponent in virtual space.
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