In Your Facebook!

The practice of family law is unique because in no other area of law is the character of a party so important to the outcome of a case.  Especially in cases involving children, the “best interest of the child” standard that courts use means that the parties’ lifestyle is especially relevant, and will likely be put on full display in the courtroom by the lawyers in the case.

How does an attorney get such personal information about the party he is working against?  Traditionally, a lawyer could go through a long process called discovery that requests answers under oath to prying questions about relationships or the production of tangible things like embarrassing photographs.  But in the modern world all of these things (and more) may be served up on a silver platter by the opposing party themselves.  More and more people are getting into the habit of broadcasting their status updates, tweets, and Instagram photos by convenient putting them on the internet for easy, 24/7 access by lawyers hungry to find dirt on them.  It is a regular feast of evidence.

And that is not all.  The ubiquity of Facebook has grown over the years, so has it’s standing as legitimate communication device.  A few months ago, a posting on Facebook was successfully used to serve a party.  The judge in the case called social media the “next frontier” as “forums through which a summons can be delivered.”
How does a lawyer get into an adverse party’s account?  I’ve seen some people with their privacy settings completely turned off.  Another route might be if the spouse has not removed my client from her friends list, or through close family and friends.

Another method followed by some (not I) is to create a profile of an attractive person who shares a high school or employer with “the target” and then you add the target’s friends.  Once a few of them accepted (and many will), the common background and the mutual friends will convince most people to accept the profile as a friend.  This however is an ethical grey area that I personally choose not to go down.  In the courts I practice in – this behavior would not sit well with the judge. 
​
At a minimum, a good family law attorney needs to be aware of how to access public profiles.  A good family law attorney also needs to warn their clients to stop Facebooking and Instagramming and Tweeting unless the posts would look fine on the homepage of their grandmother’s church.