The amount of influence social media platforms emit in our everyday life is pervasive and nearly public no matter the privacy features being utilized. As this influence extends from social/personal aspects to the judicial system, we must recognize the significant impact it can have in juvenile court cases.
There are ethical rules regarding defense attorneys and the use of social media or making statements to the press regarding a client’s personal information and their cases details. It is also necessary for attorneys to be aware of what social media platforms their clients use and what type of content is published across different platforms.
We need to be aware of the ethical rules regarding social media case exposure along with the procedures for obtaining, through subpoena or other methods, any information that may be relevant and helpful to a case. However, what are the rules when law enforcement or the prosecutor’s office has a social media page and utilizes that page to make information about specific cases public?
Increasingly, law enforcement and prosecutors’ offices, and other public officials maintain social media pages individually or as an agency. These agency pages promote individual departments in much the same way an individual person may promote him/herself for “likes” or social or political influence. Press releases with significant amounts of information about specific cases are generated and posted prior to the resolution of criminal and juvenile cases and can include the names of judicial officials who set or modify bonds or secure custody orders. In some instances, this information is incomplete or inaccurate but has a detrimental impact on the specific case or others like it based on public comments generated on these sites.
While this is more common in high level felonies, social media posts are being utilized by law enforcement in cases ranging from murder to breaking and entering. (Follow this link for a specific example.) In navigating these situations and attempting to ensure a fair process for our clients, attorneys should be aware of the Rules of Professional Conduct, Rule 3.8 which addresses the Special Responsibilities of a Prosecutor. Specifically, Rule 3.8 states:
“Except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose, [prosecutors shall] refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule” (emphasis added).
If law enforcement or the prosecutor’s office has released information in a public forum regarding your client, attorneys should also be aware of Rule 3.6 regarding Trial Publicity. While there are restrictions on attorneys utilizing the media to make public statements about an ongoing case, Rule 3.6 provides an exception when others have created negative publicity. In that event, “a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's client. A statement made pursuant to this paragraph shall be limited to such information as is reasonably necessary to mitigate the recent adverse publicity.”
If social media posts or media reports have negatively impacted your client, please review these rules and the commentary to each.