How far can you go in advising your clients to “clean up” their social media pages? The uncertainties surrounding the answer to that question have left some attorneys stumbling in an ethical minefield.
By John Browning, Trial Lawyer
Imagine yourself in a situation that’s become increasingly common for the average family lawyer in the digital age. Shortly after taking on representation, you learn that your client’s postings on Facebook, Twitter, Instagram, or other social networking sites negatively impact his or her positions in the case – perhaps about custody issues or even marital property. And there are other postings as well – perhaps not directly relevant to the case, but which certainly don’t paint your client in a flattering light. Just how far can you go in advising your client to “clean up” her Facebook or other social media pages?
The uncertainties surrounding the answer to that question have left some attorneys stumbling in an ethical minefield.
In one Virginia wrongful death case, the plaintiff’s attorney learned of photos on the surviving husband’s Facebook page that depicted him drinking, surrounded by women, and wearing a T-shirt that read “I [heart] hot moms” – hardly the portrait of a grieving widower! The attorney emailed his paralegal instructing her to have the client “clean up” his Facebook page because “[w]e do not want any blow-ups of this stuff at trial.” In addition to deleting the photos, the lawyer had his client (after deactivating his social networking account) sign sworn answers to interrogatories that he did not have a Facebook account. When the spoliation was brought to light, the court gave two adverse inference instructions to the jury and sanctioned the plaintiff’s attorney and his client a total of $722,000 ($542,000 against the lawyer and $180,000 against the client). In July 2013, Virginia State Bar disciplinary proceedings against the attorney resulted in a five-year suspension of his law license.
There can be consequences even under somewhat more benign circumstances. In a recent federal court case in North Dakota, the plaintiff testified that she had deactivated her Facebook account “on the advice of her attorney,” since she rarely used it for anything other than communicating with nieces and nephews. Nevertheless, the court granted the defense’s motion to compel and ordered the plaintiff and her counsel to make “a reasonable, good-faith attempt to reactivate” the Facebook account. And in an adversary proceeding in a Texas bankruptcy court, one federal judge held that the defendant’s mere act of taking his Facebook account private (after the incident that spawned the underlying personal injury suit) supported an adverse inference that the defendant acted with the specific intent to injure the plaintiff, making the debt non-dischargeable.
So Just What Can a Lawyer Advise?
Several ethics authorities have provided some guidance on this issue. In New York County Lawyers Association Ethics Opinion 745 in 2013, for example, that group concluded that given the realities of litigation in the digital age – in which opposing counsel and others regularly scour social networking platforms for information – “[t]here is no ethical restraint in advising a client to use the highest level of privacy/security settings that is available.” This is simply good common sense, akin to telling the client to keep the shades down at his house or to avoid discussing the case with outsiders. Similarly, Ethics Opinion 745 holds that a lawyer can review what a client plans to post on social media and “guide the client appropriately” on social media usage; it even provides a checklist of tasks that a lawyer can do in counseling her client, including discussing how the posts might be perceived by third parties. More troubling, however, is the fleeting answer the Opinion gives to the question of whether lawyers may instruct clients to “take down” existing content from social media sites. Without explanation or rationale, the Opinion concludes that “provided that such removal does not violate the substantive law regarding destruction or spoliation of evidence, there is no ethical bar to ‘taking down’ such material, particularly in as much as the substance of the posting is generally preserved in cyberspace or on the user’s computer.”
Other ethics authorities have echoed this position while taking care to explicitly caution against spoliating evidence. In July, the Philadelphia Bar Association Professional Guidance Committee concluded that while a lawyer may advise a client to change the privacy settings on the client’s Facebook page, a lawyer “may not instruct or permit the client to delete/destroy a relevant photo, link, text, or other content, so that it no longer exists.” Furthermore, the opinion directs the lawyer to take affirmative steps to preserve social networking evidence, including obtaining “a copy of a photograph, link, or other content posted by the client on the client’s Facebook page” about which the lawyer is aware “if the lawyer knows or reasonably believes it has not been produced by the client.”
Soon after, the Pennsylvania Bar Association issued its Formal Opinion 2014-300, which expressly adopted the Philadelphia Bar Ethics Opinion’s guidance. It agreed that “a competent lawyer should advise clients about the content that they post publicly online and how it can affect a case or other legal dispute.” And while the Pennsylvania Bar cautioned that lawyers may not counsel a client to alter, destroy, or conceal any relevant information, there is nothing wrong with changing a client’s profile to “private” or with instructing a client “to delete information that may be damaging from the client’s page, provided the conduct does not constitute spoliation or is otherwise illegal, but must take appropriate action to preserve the information in the event it is discoverable or becomes relevant to the client’s matter.”
In North Carolina, a proposed ethics opinion provides that “If removing postings does not constitute spoliation and is not otherwise illegal or a violation of a court order, the lawyer may instruct the client to remove existing postings on social media.” However, the Opinion cautions lawyers giving such advice to also preserve the postings “by printing the material, or saving the material to a memory stick, compact disc, DVD, or other technology.” And in Florida, a proposed Advisory Opinion on “cleaning up” social media likewise concludes that while a lawyer may advise a client to adopt stricter privacy settings, she may not advise the client to remove relevant information from a social media page unless a copy of the removed information is maintained and as long as the removal does not violate substantive law (Florida’s Committee is also considering an alternative approach, mandating against removal period, regardless of steps taken to preserve the social media content).
While these opinions make it clear that an attorney can certainly advise clients on managing their privacy settings and even the content that they post, the issue of “cleaning up” or removing Facebook postings remains somewhat murky. Attorneys are best advised not only to take appropriate measures to preserve potentially relevant social media evidence, but also to remember that the duty of competence now includes an obligation to be aware of the benefits and risks associated with technology. This includes counseling clients not only on the consequences of what they post, but also on the ramifications of deleting such posts. As the judge in one recent case of Facebook spoliation admonished, “Once Plaintiff retained counsel, her counsel should have informed her of her duty to preserve evidence and further explained to Plaintiff the full extent of that obligation.”
John G. Browning is the founding partner of the Dallas, TX office of Lewis Brisbois Bisgaard & Smith, where he handles civil litigation in state and federal courts. He is the author of The Lawyer’s Guide to Social Networking: Understanding Social Media’s Impact on the Law (Aspatore Books, 2010), and is considered a leading authority on the topic. www.lbbslaw.com.
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