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By Samson Habte
Attorneys may in some circumstances advise a client to “take down” social media and online postings that could have an adverse effect on the client's position in a civil matter, the New York County bar's ethics committee concluded July 2 (New York County Lawyers Ass'n Comm. on Professional Ethics, Op. 745, 7/2/13).
The guidance--which focuses on attorneys' obligations in civil matters only--was prompted by what the panel described as “the growing volume of litigation regarding social media discovery.”
The “premise behind such cases is that social media websites may contain materials inconsistent with a party's litigation posture, and thus may be used for impeachment,” the opinion states.
In light of these dangers, lawyers may have to alert clients to potential consequences of their digital footprints, the committee said. But “ethical rules and concepts of fairness to opposing counsel and the court” may circumscribe how far a lawyer can go, it added.
Summarizing its advice, the panel said:
An attorney may advise clients to keep their social media privacy settings turned on or maximized and may advise clients as to what should or should not be posted on public and/or private pages…. Provided that there is no violation of the rules or substantive law pertaining to the preservation and/or spoliation of evidence, an attorney may offer advice as to what may be kept on “private” social media pages, and what may be “taken down” or removed.
The committee said there is an increasingly common practice by attorneys and their clients of scouring the social media profiles of litigation opponents or witnesses for information that may be useful to a claim or defense.
“Rather than hire investigators to follow claimants with video cameras, personal injury defendants may seek to locate YouTube videos or Facebook photos that depict a 'disabled' plaintiff engaging in activities that are inconsistent with the claimed injuries,” the committee stated as an example. “Demands for authorizations for access to password-protected portions of an opposing litigant's social media sites are becoming routine,” it added.
In light of these evidentiary implications, the panel said, “an attorney's duty to represent clients competently could, in some circumstances, give rise to an obligation to advise clients, within legal and ethical requirements, concerning what steps to take to mitigate any adverse effects on the clients' position emanating from the clients' use of social media.”
Accordingly, the committee concluded, “an attorney may properly review a client's social media pages, and advise the client that certain materials posted on a social media page may be used against the client for impeachment or similar purposes.”
But competing ethical responsibilities may limit how far a lawyer can go in directing clients to curate their digital profile, the panel added.
One such limitation, it said, stems from New York Rule of Professional Conduct 3.4, which provides that an attorney may not “suppress any evidence that the lawyer or the client has a legal obligation to reveal or produce” or “conceal or knowingly fail to disclose that which the lawyer is required by law to reveal.”
Substantive law regarding spoliation of evidence also may give rise to a duty to preserve electronic information, the opinion notes.
Determinations as to whether evidence has been wrongly concealed “involve questions of substantive law and are therefore outside the purview of an ethics opinion,” the committee stipulated. “But provided that such removal does not violate the substantive law regarding destruction or spoliation of evidence,” it added, “there is no ethical bar to 'taking down' such material from social media publications, or prohibiting a client's attorney from advising the client to do so, particularly inasmuch as the substance of the posting is generally preserved in cyberspace or on the user's computer.”
Advice relating to social media and the use of information in a client's social media profiles also implicates ethics rules governing frivolous claims, the use of false evidence, and truthfulness in statements to others, the committee said.
Under Rule 3.1(a), an attorney has an obligation not to “bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous.”
“Therefore, if a client's social media posting reveals to an attorney that the client's lawsuit involves the assertion of material false factual statements, and if proper inquiry of the client does not negate that conclusion, the attorney is ethically prohibited from proffering, supporting or using those false statements,” the committee explained.
And while a lawyer is ethically permitted to advise a client to remove harmful online information, the committee said, “a client must answer truthfully (subject to the rules of privilege or other evidentiary objections) if asked whether changes were ever made to a social media site, and the client's lawyer must take prompt remedial action in the case of any known material false testimony on this subject” under Rule 3.3(a)(3).
Similarly, although the committee concluded that it is ethically permissible to “review what a client plans to publish on a social media page in advance of publication,” it noted that an attorney may not, under Rule 3.4(a)(4), “direct or facilitate the client's publishing of false or misleading information that may be relevant to a claim.”
Offering a list of ethically permissible actions, the committee concluded that a lawyer may:
• counsel witnesses to publish truthful information favorable to a client;
• discuss the content and advisability of social media posts;
• review posts that may be published and that have already been published;
• discuss the possibility that a legal adversary may obtain access to “private” social media pages through court orders or compulsory process;
• advise clients how social media posts may be received or presented by adversaries and review how the factual context of the posts may affect their perception; and
• discuss possible lines of cross-examination.
Copyright 2013, the American Bar Association and The Bureau of National Affairs, Inc. All Rights Reserved.
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