Lawyers May Advise on Clients’ Social Media Clean-Up
Most lawyers can easily recall a litigation scenario where a client’s past social media post, photo, or video caused more than a little consternation in both client and lawyer. A new opinion from The Florida Bar now allows lawyers to take preemptive steps to avoid these mishaps. Last week, a committee affirmed a Proposed Advisory Opinion from The Florida Bar’s Professional Ethics Committee that permits attorneys to counsel clients to change privacy settings on and remove information from social media accounts prior to litigation, so long as such action does not violate substantive rules or laws and the data is preserved.
The Proposed Advisory Opinion is the result of an unnamed bar member inquiring about the ethical obligations of attorneys advising clients to “clean up” their social media accounts before trial to eliminate embarrassing information the attorney considers immaterial to the suit. The inquiry asked whether, pre-litigation, a lawyer may advise a client to remove posts, photos, videos, and information from social media pages, whether related directly or not to the incident for which the lawyer is retained. The lawyer also inquired whether a lawyer may advise a client to change social media settings from ‘public’ to ‘private’ and whether a lawyer must advise a client not to remove posts if the lawyer has advised the client to set media settings to ‘private.’ The opinion found that if asked directly about removing information, the advice must comply with The Florida Bar’s Rule 4-3.4(a), which sets prohibitions on obstructing, destroying, altering or concealing material information the lawyer knows or reasonably should know is relevant to a pending or reasonably foreseeable proceeding. What constitutes an “unlawful obstruction, alteration, destruction, or concealment” of evidence in contravention to Rule 4-3.4(a), however, is a legal question – one, the opinion felt, was outside the scope of an ethics opinion.
Still, last year the Second District Court of Appeal determined normal discovery principles apply to social media in Root v. Balfour Beatty Construction, Inc. That is, information sought to be discovered must be (1) relevant to the case’s subject matter and (2) admissible in court or reasonably calculated to lead to evidence that is admissible in court. With this in mind, the proper inquiry is whether the client’s information is relevant to a “reasonably foreseeable proceeding,” and not if it is “related directly” or “not related directly” to the litigation. The opinion points out that under this analysis, information that is not “related directly” to the incident giving rise to the need for legal representation may still be relevant to the client’s matter.
In a similar ethics opinion, the New York County Lawyers Association concluded a lawyer may advise his/her clients to use the highest level of privacy settings on their social media pages and may advise clients to remove information from social media pages unless the lawyer has a duty to preserve information under law and there is no violation of law relating to spoliation of evidence. At least North Carolina and Pennsylvania have come to similar conclusions.
Not only does The Florida Bar opinion agree with New York County Lawyers Association’s conclusion, the Florida opinion goes further to allow a lawyer to advise a client pre-litigation to remove information from a social media page, regardless of its relevance to a reasonably foreseeable proceeding, so long as the removal does not violate any substantive law regarding preservation and/or spoliation of evidence. Thus, if the lawyer does ask a client to remove information from a social media profile, the lawyer must make sure that information or data is preserved if the information or data is known or reasonably should be known to be relevant to the foreseeable proceeding. What information on a social media page is relevant, however, is a factual question that must be determined on a case-by-case basis.
Absent further action by the Board of Governors within the next 30 days, the opinion will become final.