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Social Media - Advising your Client

Social Media – Advising your Client

We live in the world of social media – Facebook, Twitter, YouTube and on and on. Assume you have a client whose testimony is crucial to a pending case. You happen to look at his Facebook page and discover that he has posted some embarrassing pictures of himself that could possibly impeach his testimony. If these pictures are somehow put before the court or jury, it would adversely effect the case. Can you notify the client to take down the pictures? Would this violate any ethical rules? Not long ago, this question would not arise. Now it is real.

There have been few ethics opinions to date on this subject. However, the weight of opinion is that as long as you do not destroy evidence, or introduce misleading evidence, or withhold evidence from discovery, it is ethically permissible to advise your client on the management of social media sites.

A recent opinion by the Pennsylvania Bar Association (Formal Opinion 2014-300) addressed this question (among many others). The Opinion referenced a number of Pennsylvania’s Rules of Conduct (which are the same as the Illinois Rules). With respect to this issue, the citations were to Rule 3.3, 3.4 and 4.1 dealing, broadly, with the lawyer’s obligation not to mislead the court, not to conceal or destroy evidence, and not to offer false evidence. The Opinion first concluded that the “Rules do not prohibit an attorney from advising clients about their social networking websites.” In fact, Rule 1.1 implies that “a competent lawyer should advise clients about the content that they post publicly… .”

There are limits, however, to what a lawyer can ethically advise. The Opinion favorably cites North Carolina State Bar 2014 Ethics Opinion that concluded a lawyer may advise a client to remove information on social media if not spoliation or otherwise illegal. This appears to be the core of the issue – the lawyer must strike a balance between advising the client to change the information currently posted on the social media site and advising the client post false information or to destroy or withhold from discovery the information that was previously on the site.

Supporting this position is New York County Lawyers Association Ethics Opinion 745 (July 2, 2013) which states: “An attorney may advise clients to keep their social media privacy settings turned on or maximized and may advise clients as to what should or should not be posted on public and/or private pages, . . . Provided that there is no violation of the rules or substantive law pertaining to the preservation and/or spoliation of evidence, an attorney may offer advice as to what may be kept on ‘private’ social media pages, and what may be ‘taken down’ or removed.”

The conclusions reached in these opinions make sense. As the Pennsylvania Opinion states: “It has become common practice for lawyers to advise clients to refrain from posting any information relevant to a case on any website, and to refrain from using these websites until the case concludes.”