Lawyers Must Preserve Client Social Media Posts

July 7 — In one of just two bar opinions to address the propriety of advising clients to purge damaging social media information, the Philadelphia Bar's ethics committee concluded in a July opinion that ethics rules don't prohibit an attorney from instructing a client to delete damaging information from social media pages, so long as the data remain available for production (Ethics Opinion, Philadelphia Bar Ass'n Prof'l Guidance Comm., Op. 2014-5, 7/14).
An attorney must “take appropriate action to preserve the information in the event it should prove to be relevant and discoverable,” the Philadelphia Bar Association Professional Guidance Committee said. Attorneys must further take reasonable steps to produce the information if requested in discovery, the panel said.
The committee also said that attorneys may advise a client to alter his or her privacy settings on the client's Facebook or other social media page.
N.Y. County Opinion Cited
The committee noted that some of its conclusions are also found in “Social Media Guidelines,” a March 2014 report prepared by the Commercial and Federal Litigation Section of the New York State Bar Association.
The panel cited opinions by courts in New York and Pennsylvania, and a Virginia State Bar Disciplinary Board decision. But the panel cited just one advisory on the topic, a July 2013 opinion from the New York County bar's ethics committee.
Very few ethics panels to date have provided formal guidance on a lawyer's duties to preserve clients' social media information.
To contact the reporter on this story: Samson Habte in Washington at shabte@bna.com
To contact the editor responsible for this story: Kirk Swanson at kswanson@bna.com