Yes, Even an Emoji Could Be Evidence: What Lawyers Need To Understand About Social Media, Photos and Texting

By Brandon Vogel

February 23, 2021

Yes, Even an Emoji Could Be Evidence: What Lawyers Need To Understand About Social Media, Photos and Texting


By Brandon Vogel

Data recovery teams are better at finding things on your computer than you are at hiding them.

The most important thing to remember about the Internet is that every single keystroke typed into your computer can be recovered one way or another, observed Jay Flemma (Legal Aid Society of Mid-New York).

“I think we’ve all started to come to the conclusion that we’ve sacrificed a great deal of privacy on the Internet whether it’s by doing Internet searches, or by our purchases, or what I call surveillance advertising.”

Flemma and Mark Berman (Ganfer Shore Leeds & Zauderer) discussed the obvious and some not-so-obvious new rules of social media for lawyers on the CLE webinar, “Click, Return, Disaster! Practical Social Media Use and Ethics for Attorneys.” They examined what social media guidelines courts have upheld and how to think more strategically about your e-communications and social media use.

No such thing as privacy on the Internet

Just last week, a group text between Heidi Cruz, wife of U.S. senator Ted Cruz, and her friends was leaked to the New York Times, after the senator was criticized for vacationing in Cancun during the Texas ice storm. The texts revealed that the vacation was impromptu, seemingly contradicting the senator’s public statement.

The incident has led people to carefully consider who they text and how far a text can be disseminated.

“Be careful what you put out there,” said Fremma. “It can be used against you in ways you never thought possible.”

As for emojis in texts and social media, Fremma noted that prosecutors use them because they tell a story. He acknowledged that sometimes emojis and tweets are used innocently, which is why it is so important that judges stay in touch with technology and the means of communication.

“We all use emojis to convey our emotions, our impressions and think from an evidentiary point of view: it’s almost like your present sense,” Berman said. “You get an email, you don’t say a word. It’s like screaming, yelling, crying. Think about the creative ways that prosecutors or, even in civil litigation, how one can creatively use a mere emoji.”

Fremma advised lawyers to limit what they put on the Internet. Berman recalled an attorney who posted a photo of a courtroom proceeding featuring the judge. “It was truly remarkable that someone would take a picture and post it.”

“Put your lawyer hat on. What were you thinking? What’s prudent? What’s appropriate? What you might do at home is not what you are going to do when you have your lawyer’s hat on,” said Berman.

Attorney competence requires attorneys to research and investigate. Facebook has 1.2 billion users, there are 400 million tweets daily, and 75 hours of video uploaded to YouTube every minute. “You must know the basics of every platform clients use,” said Berman.

Fremma agreed. “The best thing to do is post your family, your cats, you know what everybody is doing for fun. As a best practice, don’t blog about your case.”

He examined the Supreme Court of Virginia case Hunter v. Virginia State Bar Third District Committee. A criminal defense lawyer blogged almost exclusively about the results he got for his clients, which was deemed attorney advertising. A disciplinary committee charged that he needed to put a disclaimer on his blog posts. However, he did not violate client confidentiality by identifying clients because the cases were concluded; his First Amendment rights were protected.

Turn off your devices

Berman and Fremma cautioned attorneys about using Siri or Alexa-based devices while working at home. “If you are having confidential conversations with clients, the last thing you would ever want is for Alexa or Siri to be recording those conversations,” said Berman.

Berman explained that conversations are not recorded on the device, but rather stored in the cloud.

“Prosecutors love it. Defense attorneys love it too for exculpating someone,” said Berman.  “I cannot say it enough. Turn it off; you’re having confidential conversations.”

Similarly, if a fire breaks out, a Fitbit could be the key piece of evidence to determine the truth of a witness’ alibi.

By checking a witness’ heartrate at the alleged moment of the incident, investigators can determine the credibility of testimony. A flat heartrate might indicate that a fire took place long after a witness says it did, while an accelerated heartrate could verify testimony.

“Fitbits really are an extraordinary piece of information,” said Berman. “You have to know how these devices operate. It’s a whole new world.”

With LinkedIn, you need to know if a review of a person’s public social media posts will trigger an auto-warning to the person whose account it is.  Berman noted that the ABA and NY Rules differ in critical ways.

The ABA Formal Opinion 466 indicates that viewing a profile did not cause a communication to the juror, and therefore it did not violate the no-contact rule. Two New York ethics opinions would indicate that doing so violates the no-contact rule with jurors.

“Focus on competence, confidentiality and cyber-protection. Everyone should focus on those three things and keep that in the back pocket,” concluded Berman.  If you focus on that, you get pretty far to the goal line of protecting yourself and your clients.”

Six diverse people sitting holding signs
gradient circle (purple) gradient circle (green)


My NYSBA Account

My NYSBA Account