The Social Security Administration (SSA) plans to implement rules, that if enacted, would allow SSA to review social media posts by Social Security Disability Insurance (SSDI) applicants and beneficiaries to check for benefits fraud.

Administrative agencies and adjudicatory bodies usually have broad authority to enact procedural and evidentiary changes that can affect the substantive rights of claimants. In the case of federal executive agencies like the Social Security Administration, those rules can be challenged in the judiciary branch and struck down by Congress.

Complaints about social security fraud are evergreen and overblown because of the difficulty in getting SSDI. SSDI benefits became even harder to receive as a result of bi-partisan reforms signed by President Obama in 2015 that included the repeal of the so-called treating physician rule.

Complaints about social security fraud echo and overlap with complaints about workers’ compensation fraud. Workers’ compensation fraud is rare on the employee side and even the workers’ compensation industry admits that workers’ compensation fraud is at least as much of a problem on the employers’ side as it is with employees.

So why does the trope of the fraudulent disability or workers’ compensation claimant continue to exist? I would argue that the plaintiff’s bar unintentionally perpetuates the myth. Here is the how and why of how I think the plaintiff’s bar perpetuates the fraudulent claim trope.

Any good plaintiff’s lawyer is going to make sure they know about their client’s social media feeds and will warn their clients about social media use. Plaintiff’s lawyers often take this standard advice and publish it on blogs and their own social medial feeds. Whenever a story breaks about an injured worker or disability claimant being caught for fraud with a social medial post, plaintiff’s lawyers reflexively post “See what happens, don’t do that.” But by engaging with these stories, the plaintiff’s bar amplifies stories about claimant fraud which are admittedly rare.

So why do we as plaintiff’s lawyers post cotnent on social media that perpetuate myths about our clients? It’s hard to say, but I have a few theories. The first is there is a pressure for plaintiff’s lawyers to engage on social media. A lot of plaintiff’s attorneys view social media engagement as marketing and outsource marketing to vendors.  When plaintiff’s lawyers take a hands off approach to social media, content tends to reflect whoever is actually producing the content rather than the attorney.

If social media posting is viewed as marketing, then from a marketing perspective, attorneys might be afraid to alienate potential clients by directly challenging client assumptions about claimant fraud. If a plaintiff’s attorney posts a generic “Be careful on social media” post, the subtext is “I only represent legitimate claimants.” Plaintiff’s lawyers are trained to frame their cases in a way that appeals to jurors that are skeptical of litigation and those who bring lawsuits. While that approach often works with juries in individual cases, that assumption can amplify those same views if used as part of attorney marketing.

Plaintiff’s lawyers try to do what is best for their clients and practices. Even if plaintiff’s lawyers don’t push back against directly about stereotypes about their clients and practices in their marketing, many of us push back against harmful laws and regulations on a state and federal level.  Social media is still a relatively new platform that has given many firms a way to engage with the public in a cost-effective way. We as plaintiff’s lawyers should use this new platform to confront negative stereotypes about our practices rather than unintentionally perpetuating harmful stereotypes.