When it comes to social media and legal ethics, most of the talk centers around what lawyers can and cannot publish online.
For instance, you shouldn’t disclose confidential client information in a Facebook post. Nor should you send rude and disparaging tweets about a judge who just ruled against you.
But what about clients? Is their social media activity any of your business?
Say you represent a client in civil litigation. Should you advise them not to publish potentially damaging information online? What if you fail to do so – is this a breach of your ethical responsibilities?
And is it okay to advise clients to scrub their online sites of any evidence that might help the other side?
A proposed ethics opinion from the NC State Bar tackles those questions and more.
Proposed 2014 Formal Ethics Opinion 5
This inquiry prompted the April 2014 opinion: “A client has a legal matter that will probably be litigated although a law suit has not been filed. The client’s postings and other information on a social media website (referred to collectively as ‘postings.) could be used to impeach the client or are otherwise relevant to the issues in the law suit.”
Inquiry #1: Prior to filing a law suit, may the lawyer give the client advice about the legal implications of postings on social media websites and coach the client on what should and should not be shared on social media? May the lawyer give the same advice after a law suit is filed?
Opinion #1: Yes. Lawyers must provide competent and diligent representation to clients. Rule 1.1 and Rule 1.3. To the extent relevant and material to a client’s legal matter, competent representation includes knowledge of social media and an understanding of how it will impact the client’s case including the client’s credibility. If a client’s postings on social media might impact the client’s legal matter, the lawyer must advise the client of the legal ramifications of existing postings, future postings, and third party comments. Advice should be given before and after the law suit is filed.
Inquiry #2: May the lawyer instruct the client to remove existing postings on social media? After a law suit is filed, may the lawyer give the client such advice?
Opinion #2: No, in general, relevant social media postings must be preserved.
The New York State Bar opined that a lawyer may advise a client about posting on a social media website and may review and discuss the client's posts, including what posts may be removed, if the lawyer complies with the rules and law on preservation and spoliation of evidence. NY State Bar, Ethics Op. 745 (2013). We agree.
A lawyer shall not counsel a client to engage, or assist a client, in conduct the lawyer knows is criminal or fraudulent. Rule 1.2(d). The lawyer therefore should examine the law on spoliation1 and obstruction of justice and determine whether removing existing postings would be a violation of the law. If removing postings does not constitute spoliation and is not otherwise illegal or a violation of a court order, the lawyer may instruct the client to remove existing postings on social media. If the lawyer advises the client to take down postings on social media, where there is a potential that destruction of the postings would constitute spoliation, the lawyer must also advise the client to preserve the postings by printing the material, or saving the material to a memory stick, compact disc, DVD, or other technology, including web-based technology, used to save documents, audio, and video. The lawyer may also take possession of the material for purposes of preserving the same. Advice should be given before and after the law suit is filed.
Inquiry #3: May the lawyer instruct the client to change the security and privacy settings on social media pages to the highest level of restricted access? May the lawyer give the same advice after a law suit is filed?
Opinion #3: Yes, if such advice is not a violation of law or a court order. Advice should be given before and after the law suit is filed.
What Do You Think?
At present, 2014 FEO 5 is only a proposal. It is open for your input. What do you think?
Send your feedback to the State Bar Ethics Committee at PO Box 25908, Raleigh, NC 27611 by letter or email (email@example.com). All letters of comment received prior to the October meeting of the Ethics Committee are considered by its members.
And if you have really strong thoughts about the matter, you can attend the meeting in person. All meetings of the Ethics Committee are public. .
- NC State Bar http://www.ncbar.gov/ethics/propeth.asp
- NC State Bar FAQ http://www.ncbar.gov/faq/f_faq.asp#6
Jay Reeves a/k/a The Risk Man is an attorney licensed in North Carolina and South Carolina. Formerly he was Legal Editor at Lawyers Weekly and Risk Manager at Lawyers Mutual. Contact firstname.lastname@example.org.