Information posted on social media websites has provided evidentiary fodder for many legal claims and raised controversial questions as to what a lawyer may advise a client regarding the removal and preservation of damaging information from a social media account. Advising
The Philadelphia Bar Association’s Professional Guidance Committee recently analyzed these issues in a July 2014 advisory opinion in which it concluded that an attorney may advise a client to change his privacy settings and may also advise the client to remove content, as long as the content is preserved so that it may be produced during litigation. The Philadelphia opinion concluded that it is not an ethical violation to advise the client to take action that renders the content more difficult to locate if the content is readily available to be produced in the event that the information is relevant and responsive to a discovery request.
The Committee reasoned that the rules of ethics do not bar an attorney from “instruct[ing] a client to delete information that may be damaging from the client’s page, but must take appropriate action to preserve the information in the event it should prove to be relevant and discoverable.” The Committee found this approach consistent with Pennsylvania’s Code of Professional Conduct Rule 3.4(a)’s prohibition against “unlawfully alter[ing], destroy[ing] or conceal[ing] a document or other material having potential evidentiary value.” The Committee based its finding that a lawyer can recommend a client to change the privacy settings on his or her’s Facebook page on the fact that changing a privacy setting does not destroy evidence; it only makes it more difficult for other parties to access this information. However, this information can still be obtained through discovery or subpoena.
Using the discovery process to obtain social media information that has been removed or secreted behind privacy settings becomes complicated, as the attorney seeking to compel such information must demonstrate its relevance to avoid the appearance of engaging in a fishing expedition. Without any insight from publicly posted information, proving relevance may be challenging. Read more on this dilemma here.
Philadelphia’s advisory opinion is consistent with social media guidelines issued in March 2014. Philadelphia and New York Bar Associations have been in the forefront of tackling the ethics issues arising in the digital age and although their opinions are advisory in nature, the opinions have provided guidance to courts and practitioners.
Florida’s Professional Ethics Committee is also considering social media evidentiary ethics issues and recently appointed a subcommittee to draft a proposed advisory opinion focused upon whether an attorney may advise a client as to appropriate privacy settings and to “clean up” a social media account prior to litigation. The advisory opinion is scheduled to be considered at its October 17th meeting.
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