In its July 25th Formal Ethics Opinion, the North Carolina State Bar chimed in on the lively discussion centered on whether lawyers may advise their litigation clients to remove postings on social media.
There were three main questions that the Opinion tackled. All three questions pertained to advice that may be provided before filing a lawsuit and during litigation.
The first question was whether a lawyer may advise a client about the legal implications of social media posts and coach the client on what should and should not be shared on social media. The Opinion answered in the affirmative, explaining that pursuant to Rules 1.1 and 1.3, lawyers must provide competent and diligent representation to clients and, as such, should provide social media advice both before and after a lawsuit is filed.
The second question was whether a lawyer may instruct the client to remove existing social media content. The Opinion responded in the negative, explaining that as a general rule, relevant social media postings must be preserved. However, the Opinion elaborated that “if removing postings does not constitute spoliation and is not otherwise illegal or a violation of a court order, the lawyer may instruct the client to remove existing postings on social media.” However, if there is a possibility that removal may constitute spoliation then copies must be preserved.
The third question was whether a lawyer may instruct a client to change and increase the security and privacy settings on social media pages. The Opinion again answered in the affirmative.
Thus, North Carolina has joined Philadelphia and New York in opining on the repercussions of clients “cleaning up” their social media pages and reinforced the belief that in order to be competent and effective, lawyers must recognize and understand the growing impact of social media on the practice of law.
Click here for the full text of the Opinion
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