Legal Ethics and Social Media: What Pre-Litigation Advice May an Attorney Provide to His or Her Client?

Budzynski_Cheri

Cheri A. Budzynski

When meeting with your client about a matter that will likely result in litigation, what advice can you give your client about privacy settings and removal of information from social media in the pre-litigation setting?  The Florida Bar Professional Ethics Committee recently provided a proposed advisory opinion regarding this situation, wherein a Florida Bar member asked the following questions:

  1. Pre-litigation, may a lawyer advise a client to remove posts, photos, videos, and information from social media pages/accounts that are related directly to the incident for which the lawyer is retained?
  1. Pre-litigation, may a lawyer advise a client to remove posts, photos, videos, and information from social media pages/accounts that are not related directly to the incident for which the lawyer is retained?
  1. Pre-litigation, may a lawyer advise a client to change social media pages/accounts privacy settings to remove the pages/accounts from public view?
  1. Pre-litigation, must a lawyer advise a client not to remove posts, photos, videos, and information whether or not directly related to the litigation if the lawyer has advised the client to set privacy settings to not allow public access?

The Committee noted that Rule 4-3.4(a) was applicable:

A lawyer must not:

(a) unlawfully obstruct another party’s access to evidence or otherwise unlawfully alter, destroy, or conceal a document or other material that the lawyer knows or reasonably should know is relevant to a pending or a reasonably foreseeable proceeding; nor counsel or assist another person to do any such act.

Following the opinion of the New York State Bar Association’s Commercial and Federal Litigation Section Guideline No. 4.A, the Committee gave the opinion that a lawyer may provide advice to her client to change the privacy settings to the highest level on any social media pages.  The Committee also provided the opinion that an attorney “may advise the client regarding removal of relevant information from the client’s social media pages …. [p]rovided that there is no violation of the rules or substantive law pertaining to the preservation and/or spoliation of evidence … as long as an appropriate record of the social media information or data is [sic] preserved.”  The Committee noted that what information is relevant to reasonably foreseeable litigation is a question of fact that must be determined on a case-by-case basis.

The North Carolina State Bar has issued a similar opinion.  However, the Ohio State Bar Association has not yet opined on this issue.