This article was originally published on California Lawyer by Chandra Moss (CFLS), Kristen Holstrom, Mary Melech, and William Peacock on April 5, 2016
Facebook is ubiquitous now, right? What “You’ve Got Mail!” was to the 90s, “Like” buttons and status updates are to today’s Internet users. And while I was one of the first college students to use Facebook, and I watched it grow from a college kids’ message board to the social network, I knew it had really gone mainstream when a barely literate relative who has trouble operating a flip-phone “liked” one of my photos. If he can figure it out, all lawyers need to be able to do so as well, because Facebook’s ubiquity means it is a primary form of communication—on par with email and postal mail.
Not sold yet? What if I told you that a court had allowed service of process in a divorce case through Facebook? Or that two people recently found themselves in contempt of court for Facebooking a protected party? What if I told you a bunch of cool stories about opposing parties ruining their cases by broadcasting the finer details of their lifestyle to their online friends?
Maybe then you’d add a Facebook warning for your clients, and regular Facebook checks for opposing clients, to your typical case preparation strategy. If not, perhaps an ethics rule requiring familiarity with social media would be enough to get you on the bandwagon—Facebook isn’t new, but an ethical duty to know how to use it certainly would be.
This is a general roundup of the state of Facebook and family law: from cases on the frontier, to stalking opposing clients, to a wave of new ethics rules regarding proficiency with technology.
3 UNUSUAL COURT DECISIONS
Service by Facebook
Which are you more likely to read: a newspaper announcement of a pending lawsuit or a Facebook message sent directly to your actively used account? Early last year, a New York judge allowed a woman who had spent years trying to track down and serve her husband to do so online, reports CNN. The husband had reportedly spent years dodging service and told his wife that he had no permanent address or employer.
Before allowing service via social media, Judge Cooper required the wife to prove that the account belonged to her husband and that it was consistently in use. In his ruling, he called social media the “next frontier” as “forums through which a summons can be delivered.”
Will California judges follow suit? It certainly seems a lot more effective than publishing a notice in a Needles, California newspaper and hoping that the opposing party will see it.
Violating Protective Orders
No contact means no contact, right?
Well, if you ever wondered where the line might be, or need a cautionary tale for clients, two recent cases of passive-aggressive Facebooking led to legal trouble for defendants restricted by protective or restraining orders.
Last August, a Pennsylvania man was arraigned on contempt of court charges for “liking” his ex-girlfriend’s Facebook photos—twenty-two of them, to be exact—while a “protection from abuse” order was in place. According to Ars Technica, Justin Bellanco allegedly told his girlfriend previously that he would “shoot her knee cap to watch her suffer.” The like-binge apparently was enough communication to violate the resulting no-contact order.
And in January, a woman was arraigned in New York for doing something similar: tagging the subject of a protective order in a status message on Facebook, reports Cnet.
TALES FROM THE TRENCHES
To me, one of the greatest parts about being a lawyer are the war stories: the tales we tell to each other over a scotch that begin with, “You won’t believe how incredibly stupid [opposing party] is!”