Rule 4-1.1 and Rule 4-3.4 Describe the Competency and Fairness to Opposing Counsel Considerations

HIGHLIGHTS:

  • The Florida Bar’s Professional Ethics Committee issued Proposed Advisory Opinion 14-1, which adopts a similar approach to other jurisdictions that have already considered the issue of advising clients on social media.
  • The proposed advisory opinion resolves the tension between the ethical duties outlined in Rule 4-1.1 and Rule 4-3.4.

What ethical obligations does a Florida attorney have when advising a client to remove material from social media sites before litigation? Until recently, it was an open question; however, on Jan. 23, 2015, The Florida Bar’s Professional Ethics Committee issued Proposed Advisory Opinion 14-1, which adopts a similar approach to other jurisdictions that have already considered the issue.

The Florida Bar's ethical rules are Rule 4-1.1 (Competence) and Rule 4-3.4 (Fairness to Opposing Party and Counsel at Issue). Competence may require an attorney to advise a client about removing embarrassing or damaging information from a client’s social media pages; however, fairness to the opposing counsel bars an attorney from counseling or assisting a client in altering, destroying, or concealing evidence. The proposed advisory opinion resolves the tension between these ethical duties as follows:

  • An attorney may advise a client to use the highest available privacy settings on social media.
  • An attorney may advise a client to remove material from social media before litigation, regardless of its relevance to the litigation, as long as the removal does not constitute spoliation.
  • The attorney must take reasonable steps to preserve removed social media material that the attorney knows, or should know, will be relevant to the litigation.

In short, Florida attorneys can advise their clients to take dirty laundry off the clothesline, but not to burn it.

Many social media websites, including Facebook and Twitter, enable social media users to export all of their information. In addition, third-party applications may be used to archive social media.