The Legal Intelligencer

Americans spend an estimated 20 percent of their free time on social media sites. Posting photographs, status updates, travel logs, streams of consciousness, rants and all manner of things online to enable friends and family to peer into one's life has become commonplace.

But what if the person doing the peering is not a friend or family member? What if he or she is an attorney (or private investigator) seeking to scour an adverse litigant's social media pages for damaging information or photos?

Given the prevalence and potentially devastating impact of social-media-based evidence, the question becomes: Can attorneys properly advise clients about what may be posted to—or removed from—such sites without violating existing ethical rules?

NYCLA Ethics Opinion 745

On July 2, 2013, the New York County Lawyers' Association (NYCLA) issued Ethics Opinion 745 to address "what advice is appropriate to give a client with respect to existing or proposed posting on social media sites." This novel opinion offers the foremost insight into how other bar associations (and courts) may view the attorney's role in counseling clients on online postings.

To begin, the NYCLA observed how ethics opinions from the New York State Bar Association (Opinion No. 843 (2010)) and the Oregon State Bar legal ethics committee (Opinion No. 2005-164) concluded that accessing social media pages open to all members of a public network was ethically permissible. But an attorney's ability to access social media information is not unlimited; using false or misleading representations to obtain evidence from a social network is still prohibited conduct under Rules of Professional Conduct 4.1 and 8.4(c).

As the opinion explains, client activity on social media sites may implicate serious privacy concerns over the personal nature of online postings. One example includes how users may unintentionally expose sensitive information to the public at-large with a single click. And that even after the user removes said information, potential employers, adverse parties, or even family members may still have access. Accordingly, the NYCLA opined attorneys could indeed advise clients about whether or not to post on social media sites. And that merely providing such advice does not violate any ethical obligations.

Importantly, the NYCLA also opined that attorneys could even go so far as to instruct clients to "take down" material from existing social media sites. For instance, attorneys may properly advise clients to: (1) use the highest privacy and security levels on social media sites; and (2) move content from the public portion of such sites to the private portion. While the NYCLA observed adverse parties might therefore be prevented from directly accessing such digital content, the material would still be obtainable via formal discovery.

When 'Cleaning Up' Gets Messy

Despite the liberality of Ethics Opinion 745, two recent cases offer a cautionary tale of ruinous consequences born of social media discovery abuse.

In 2011, Matthew B. Murray—former vice president of the Virginia Trial Lawyers Association, and branch manager of the Charlottesville, Va., office of Allen, Allen, Allen & Allen—became the poster child for botched social media discovery.

In Lester v. Allied Concrete, Case No. CL08-150 & CL09-223, Murray represented plaintiff Isaiah Lester against defendant Allied Concrete in a personal injury and wrongful-death action for the loss of Lester's wife after a cement truck crossed the center line and tipped over their car in 2009. As would later be revealed, Murray had initially instructed Lester, through his assistant, to "clean up" his Facebook account during discovery, cautioning Lester that: "We do not want blow ups of other pics at trial so please, please clean up your Facebook and MySpace!" As a result, Lester deleted 16 photos from his Facebook account—all of which were later obtained by Allied's attorneys using forensic techniques. Notably, the recovered material included a picture of Lester with a beer can wearing a T-shirt that read: "I ♥ hot moms."

At trial, jurors were told about the scrubbed photos. But the emails between Murray, the paralegal and Lester were not provided to the court until after trial. When confronted, Murray attributed the error to his paralegal, but later confessed he concealed the emails for fear a continuance would be granted.

In response, the judge ordered Murray and Lester to pay $772,000 (Murray's share was $544,000) for Allied's legal fees, and slashed Lester's $8.5 million jury award in half. (The Virginia Supreme Court reinstated the full verdict two years later.) Murray also agreed to a five-year suspension for violating ethics rules governing candor toward the tribunal, fairness to opposing party and counsel, and misconduct. He resigned from his firm July 25, 2011.

Next, in Gatto v. United Air Lines, 2013 U.S. Dist. LEXIS 41909 (D.N.J. Mar. 25, 2013), Frank Gatto, a baggage handler at John F. Kennedy International Airport, claimed he suffered serious injuries when a set of stairs used for aircraft refueling crashed into him in 2008. During discovery, Gatto agreed to grant defense counsel access to his Facebook page. But before defense counsel was able to gain access, Gatto deactivated the profile for fear unknown individuals were trying to access his page (not realizing it was defense counsel). Facebook automatically—and irreparably—deleted Gatto's account 14 days later.

Based on the foregoing, Gatto was sanctioned for spoliation of evidence. Notably, U.S. Magistrate Judge Steven C. Mannion of the District of New Jersey rejected the argument that deletion was "accidental." "Even if [Gatto] did not intend to permanently deprive the defendants of the information associated with his Facebook account, there is no dispute that [he] intentionally deactivated the account ... and then fail[ed] to reactive the account within the necessary time period. As a result, defendants ... have lost access to evidence that is potentially relevant to plaintiff's damages and credibility," the court wrote. While the defendants were granted an adverse inference instruction, the judge declined to award legal fees because, according to the opinion, the destruction was not "motivated by fraudulent purposes or diversionary tactics" and the loss of evidence did not "cause unnecessary delay."

Implications: What Goes Up May Come Down

As shown, Opinion 745 states attorneys may ethically review what a client plans to publish on social media sites in advance of publication, so as to guide them appropriately. This includes how posts may be received by legal adversaries, as well as how the factual context of posts may affect perceptions.

Moreover, the implications of attorneys being permitted to advise clients on privacy settings is particularly significant given that 25 percent of all Facebook users do not employ any privacy control, according to an Oct. 30, 2012, post titled "Social Media Statistics and Facts 2012."

As for the question of whether attorneys may instruct clients to "clean up" their Facebook page, the answer depends on exactly what cleaning up means.

If it means deletion, as in Lester, or conduct that could potentially result in deletion, as in Gatto, then the answer is no.

But if cleaning up simply means advising clients on whether or not to post, or moving content from the public to the private portion of a site, then the answer seems to be a qualified yes. This is especially true where the substance of the posting is preserved in cyberspace or on the user's computer. (As an aside, accessing the private portions of a litigant's social media site generally turns on whether a sufficient foundation was laid to believe impeachment material exists there—as opposed to engaging in a fishing expedition hoping to stumble onto something useful.)

Despite Opinion 745's leeway, certain concerns persist. For instance, despite persuasive guidance from a bar association interpreting existing ethical rules, there is no guarantee a judge would not find content removal tantamount to hiding evidence, or, at the very least, an effort to delay the discovery process.

Considering the stiff penalties in Lester and Gatto, attorneys should tread carefully when advising clients on cleaning up online content. Indeed, Murray's entire legal career was brought down by a single discovery misstep (compounded by lying to the court) over an unflattering client photo. Had he addressed it directly—i.e., by seeking a protective order or motion in limine ruling—the court may have simply precluded the evidence. As the NYCLA cautions, attorneys must first understand the particular type of electronic evidence—and the circumstances under which items are destroyed—before advising on preservation.

Attorneys should be mindful of just how messy cleaning up Facebook can be.●