Defense by social media: Wave of the future or flash in the pan?

Debra Pickett is president of Page 2 Communications (www.page2comm.com).  A former newspaper columnist and television commentator, Pickett offers consulting and training services to law firms and lawyers who deal with the media.  She writes here each week on topics related to law and media.  To learn more, reach her at deb@page2comm.com.

Attorneys for the defendant in the Trayvon Martin shooting case, George Zimmerman, made big headlines earlier this month when they launched a Facebook page and a Twitter account on behalf of their client.

“We understand that it is unusual for a legal defense to maintain a social media presence on behalf of a defendant, but we also acknowledge that this is a very unusual case,” lawyer Mark O’Mara said at the time.

O’Mara offers a more detailed explanation for the strategy on the firm’s recently launched website, GZLegalCase.com, writing that “social media in this day and age cannot be ignored. It is now a critical part of presidential politics, it has been part of revolutions in the Middle East and it is going to be an unavoidable part of high-profile legal cases, just as traditional media has been and continues to be.”

Certainly, social media has become a factor in the coverage and discussion of high-profile matters.  What began with an unprecedented rush of folks signing up for Twitter to receive live updates on the 2011 trial of Dr. Conrad Murray in the death of Michael Jackson has quickly become commonplace: when William Balfour stood trial for the murder of Jennifer Hudson’s family members, court officials provided an overflow room for reporters with a realtime transcript of the trial.  The journalists seated there, who quickly tweeted out compelling details were not, technically, tweeting “from the courtroom,” but it was a distinction without much of a difference.  Their comments were enmeshed in traditional media stories about the trials and spread quickly across multiple social networks, further blurring whatever line might still exist between journalism and water cooler conversation.

The Zimmerman defense team is attempting to remove the line entirely, with new media content coming directly from their own platforms, without even the pretense of a journalistic filter.  Numerous commentators have argued that this would seem pretty clearly to run afoul of the usual prohibition against lawyers making extrajudicial statements that could threaten the fairness of a trial, but, I would argue that, with the case receiving so much attention, there is room for social media commentary within the rules.

In Illinois, Professional Conduct Rule 3.6 [Trial Publicity] includes a clear exemption for “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.”

In other words, if somebody else starts the social media conversation and says things that are damaging to your client, you can join the conversation on your client’s behalf, as O’Mara has for Zimmerman.  I believe we’re going to see more and more of this, in more and more cases and that judges will be increasingly inclined to let it go on.  In fact, I think it’s likely that, within a few years, maintaining a social media presence for a client will become the “standard of care” in high-profile matters.

R U ready for that?

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