What can you do about your client’s damaging Facebook posts?
Use of Facebook is ubiquitous. Most clients have a social media presence and it may contain damaging information. It is commonly accepted that asking about and/or searching our client’s social media presence may now be required by our duty of provide competent representation under Ohio Prof. Cond. R. 1.1. This is particularly true in certain practice areas such as domestic relations or criminal defense.
Once damaging social media information is discovered, what can counsel do? Can you tell your client to delete the information? Do you have to disclose it in discovery? A recent ethics opinion by the Philadelphia Bar Association provides some guidance in one of the first attempts to address this thorny issue. (Phil. Bar Ass’n Prof’l Guidance Comm. Op. 2014-5)
As the opinion states, the inquiry focuses on an attorney’s duty to preserve evidence. In Ohio, Prof. Cond. R. 3.4(a) states that a lawyer may not “unlawfully obstruct another party’s access to evidence.” According to the committee, Rule 3.4(a) prohibits counsel from altering, destroying or concealing relevant social media information. Nonetheless, Rule 3.4 is not interpreted as prohibiting counsel from advising a client to make social media profiles “private” or even “to delete information that may be damaging” from a social media page. The committee was clear that if counsel advises the client to delete information, Rule 3.4 requires the lawyer to “take appropriate action to preserve” the deleted information should it prove relevant and discoverable in the future.
Additional professional conduct rules are implicated by this issue. Rule 3.3(a) requires lawyers, as part of their duty of candor to the tribunal, to take reasonable remedial measures, if the lawyer learns that a client has destroyed evidence. Rule 4.1 imposes a duty to be truthful when dealing with others on a client’s behalf. According to the committee, this requires lawyers to “make reasonable efforts to obtain” relevant evidence, including from social media “if the lawyer knows or has a reasonable belief that a client possesses” such evidence.
Ohio has not opined on this issue, but this opinion provides guidance that Ohio lawyers can utilize when wrestling with clients’ social media.