Social media such as Facebook, Twitter, Snapchat and countless others are a pervasive part of modern life. We are distracted by it. Our children are addicted to it. Our clients post on it. All can live to regret it.
Given the potential harm social media can cause to peoples’ lives and cases, is it appropriate for a lawyer to advise a client to take down an embarrassing or case-imperiling post? Is it appropriate to advise a client not to make such a post in the first place? A recent ethics opinion from the New York County Lawyers’ Association reached this conclusion:
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, consistent with the principles stated above. 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.
See NYCLA Ethics Op. No. 745 (Jul. 2, 2013). This is good advice—so far as it goes.
Rule 1.1, which requires a lawyer to be competent, suggests that a lawyer not only can, but should, advise his client about the possible case-related consequences of social-media postings. A client needs to know that the other side will be (not may be) watching. Simple enough.
Rule 4.1 and Rule 3.3 would prohibit a lawyer from advising a client to post false images or information on a social media site for purposes of manufacturing favorable evidence (for example, by encouraging a personal injury client to post a sad picture of herself in a wheelchair when she was neither sad nor wheelchair-bound). You can’t just gin evidence up, whether on social media or elsewhere. Simple enough.
The issue of a lawyer-directed take down is more difficult. Rule 3.4(a) prohibits a lawyer from counseling a person, including a client, to “unlawfully obstruct another party’s access to evidence” or to “unlawfully alter, destroy or conceal a document or other material having potential evidentiary value.” A picture of a personal injury plaintiff jumping on a trampoline is a document “having potential evidentiary value” in a case in which the plaintiff claims that she cannot walk. Therefore, a lawyer clearly could not advise the plaintiff to destroy all copies of the photograph. But advising a client to remove a photo from Facebook is not advice “to destroy” or “to conceal” it. Such advice, in my view, is equivalent to advising a client to remove—but not to destroy—an embarrassing picture posted on a billboard. In short, advising a client to take down a Facebook photo and to preserve it for production in the course of discovery shouldn’t run afoul of the rules.