Your domestic relations client has some really unfortunate Face Book posts that she put up before you filed for divorce on her behalf. Your personal injury client has some pictures on Instagram that seem to depict him riding a surfboard, despite his claimed injury. And your business client, charged with producing a defective product, has an FAQ section on its website that seems to invite customers to use the product improperly.
How far can you go in counseling your clients to clean up their social media act? Can you tell them to delete things? To shut down their accounts entirely? When does a prophylactic social media “scrub” become sanctionable spoliation of evidence? What role does timing play? Recent ethics opinions underscore the role of substantive law in answering those questions.
Florida — most recent opinion
The Florida bar’s Professional Ethics Committee is the most recent to issue an ethics opinion on this subject. Last month, the committee affirmed proposed Advisory Opinion 14-1, subject to review of the bar’s board of governors in October. The committee opined on a lawyer’s ethical obligations in advising clients to “clean up” their social media presence before filing litigation, in order to remove embarrassing — but non-material — information.
The committee advised that the relevant ethics rule is Florida’s version of Model Rule 3.4(a), which bars unlawfully obstructing another party’ s access to evidence or unlawfully altering, destroying or concealing material having potential evidentiary value. (Florida’s version is at its Rule 4-3.4(a).) In summary, the short opinion says that:
- pre-litigation, a lawyer can advise a client to remove information from a social media page, even if it may be relevant to a reasonably foreseeable proceeding — as long as the removal doesn’t violate any substantive law regarding preservation and/or spoliation;
- the lawyer may advise the client to use the highest level of privacy setting on the client’s social media pages;
- the duty of competence may require a lawyer to advise the client regarding removal of relevant information from the client’s social media pages;
- what information on social media is relevant to a proceeding is a factual question to be determined case-by-case; and
- what the law requires regarding preservation and spoliation is a substantive legal issue, to be determined based on developing case law and statutes.
Ethics opinions sidestep substantive law
Although cautioning that the substantive legal question is outside its purview (as ethics committees typically do), the Florida committee cited several cases addressing the issue of discovery or spoliation in connection with social media, although the issues there arose after litigation had commenced: e.g., Allied Concrete Co. v. Lester (Va. 2013) (fines of $542,000 against lawyer and $180,000 against client for spoliation of evidence where client deleted photos from Facebook account at lawyer’s direction and deleted account, and lawyer signed discovery requests stating that client did not have the accounts); Gatto v. United Airlines (D. N.J. 2013) (adverse inference instruction where plaintiff deactivated social media account after defendants requested access).
The Florida opinion cited the New York County Lawyers Association’s Opinion 745 (2013), which likewise advises that lawyers may tell clients to remove information from social media pages unless the lawyer has a duty to preserve information under substantive law, and unless removal would constitute spoliation of evidence.
North Carolina’s ethics comittee issued a fairly similar opinion in 2013, and Pennsylvania’s ethics committee weighed in last year to much the same effect.
Keep calm and consider all sources
While their details may differ, the opinions that have taken up the social media scrubbing issue over the last couple years often disclaim the ability to advise on the substantive issues. That’s understandable, because the ethics committees issuing these opinions have limited portfolios: they can interpret their state Rules of Professional Conduct and issue advisory opinions, but their jurisdiction typically does not extend to opining on purely legal issues.
Yet, as the Florida opinion expresses, a lawyer’s duty in this area is shaped both by ethical considerations and substantive statutory law and common law.
Thus, advising your clients competently on social media scrubbing issues is not a one-stop process. Rather, it is a multi-pronged question and requires you to consider all the sources of law in determining your permitted scope of advice.