The Florida Bar’s Professional Ethics Committee has just issued Proposed Advisory Opinion 14-1, which discusses the ethical obligations that an attorney has when advising a client to “clean up” the client’s social media pages before litigation is filed. Breaking
Although there is case law that already addresses the issues of discovery and spoliation as they pertain to social media, the committee distinguished that these cases have only dealt with the issues of discovery and spoliation after litigation had commenced. Here, the committee is tackling the question of what an attorney may ethically advise in the pre-litigation stage.
The committee announced its agreement with the New York County Lawyers Association’s NYCLA Ethics Opinion 745 (2013), which stated that a lawyer may advise a client to use the highest level of privacy setting on the client’s social media pages so that they are not publicly accessible. The committee also agreed that a lawyer may advise a client to remove information from a social media page, regardless of its relevance to a reasonably foreseeable proceeding, so long as: (1) the removal does not violate any substantive law regarding preservation and/or spoliation of evidence; and (2) an appropriate record of the social media information is preserved if the information is known by the lawyer or reasonably should be known by the lawyer to be relevant to the reasonably foreseeable proceeding.
Finally, the committee turned its attention to the Florida Rules of Professional Conduct that are implicated on this issue. It pointed out that the general obligation of competence under Rule 4-1.1 may require an attorney “to advise the client regarding removal of relevant information from the client’s social media pages, including whether removal would violate any legal duties regarding the preservation of evidence, regardless of the privacy settings” (Emphasis Added). And it found that if a client asks an attorney about removing information from his or her social media pages, the attorney must adhere to Rule 4-3.4(a), which states that a lawyer must not “unlawfully obstruct another party’s access to evidence . . . that a lawyer knows or reasonably should know is relevant to a pending or a reasonably foreseeable proceeding,” and that determining what information is relevant is a factual question to be decided on a case-by-case basis.
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