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By Samson Habte
July 7 --Ethics rules do not prohibit an attorney from instructing a client to “delete information that may be damaging from the client's [Facebook] page,” the Philadelphia bar's ethics committee concluded in a July opinion.
But a lawyer who makes such a suggestion must “take appropriate action to preserve the information in the event it should prove to be relevant and discoverable,” the panel cautioned.
The opinion represents one of the first attempts by a legal ethics panel to sort through the ethical questions that arise when attorneys learn about information on social media websites that could damage a client's case.
Nevertheless, a growing body of case law indicates that judges are increasingly likely to admit social media communications into evidence during litigation, and to sanction parties and lawyers who wrongfully conceal such materials. (See box.)
The Philadelphia ethics opinion and the court decisions it cites offer insights into how lawyers can protect their clients' interests while simultaneously complying with ethics rules when providing advice on managing clients' social media content.
Consider the ethics committee's finding that lawyers do not violate Rule 3.4(a) by advising clients to change privacy settings on their social media accounts. According to one author, case law suggests this is wise counsel because “when a litigant's social-networking account is not publicly available, the likelihood of its discovery diminishes significantly”:
Courts are wary about granting discovery of social media content where the requesting party has not identified some specific evidence tending to show that relevant information exists. However, a requesting party is only able to satisfy this burden if at least some part of producing party's social media content is publicly available. … As more and more users understand the importance of privacy settings, the burden on the requesting party becomes more and more difficult to satisfy.
Margaret DiBianca, Discovery and Preservation of Social Media Evidence, Business Law Today (ABA, January 2014). See also McCann v. Harleysville Ins. Co., 910 N.Y.S.2d 614 (N.Y. App. Div. 2010) (characterizing discovery request as “fishing expedition” where nothing on public portion of Facebook profile suggested existence of relevant evidence on private portion); Trail v. Lesko, No. GD-10-017249 (Pa. C.P. July 3, 2012) (courts considering requests to discover private Facebook information “have relied on information contained in the publicly available portions of a user's profile to form a basis for further discovery”); Zimmerman v. Weis Markets Inc., 2011 BL 332424, No. CV-09-1535 (Pa. C.P. May 19, 2011) (courts decline to order production of private portions of social media profiles where party seeking discovery cannot make “threshold showing” that public portions contain relevant information).
One case not cited in the ethics opinion, Painter v. Atwood , 2014 BL 74567 , No. 2:12-cv-01215-JCM-RJJ (D. Nev. March 18, 2014), demonstrates the importance of clearly informing clients of their preservation obligations at the start of a representation. The court in that case imposed sanctions in the form of an adverse inference jury instruction against a plaintiff who deleted Facebook posts that supposedly undermined her claims that an employer sexually assaulted her.
“[I]t is of no consequence that Plaintiff is young or that she is female and, therefore, according to her counsel, would not have known better than to delete her Facebook comments,” the Painter court said. “Once Plaintiff retained counsel, her counsel should have informed her of her duty to preserve evidence and, further, explained to Plaintiff the full extent of that obligation.”
One article suggests that at the outset of a representation lawyers should provide written notice to advise the clients of how creating--or deleting--social media postings could negatively impact their case:
We have found it helpful to advise our clients against communicating about this matter on social media (Facebook, Twitter, Tumblr, Flickr, Skype and the like) during the course of the representation. Communications and information shared on social media websites are not private, can be discoverable and if used as evidence may be potentially damaging to your interests. Information shared with others online could also result in a waiver of the attorney-client privilege were that information to relate in any way to the legal matter that we are handling for you. In addition, you should not delete or remove information from any social media website, as that could be considered destruction of evidence, spoliation of evidence or obstruction of justice. As an added precaution, it is advisable to refrain from communicating with us on any shared device that belongs to any person or entity that is not a party to the litigation.
Joshua Briones & Ana Tagvoryan, The Ethics of Using Social Media to Communicate and Investigate During Litigation, 2 Social Media Law & Policy Report 43 (Bloomberg BNA, Oct. 29, 2013).
“[A]t its most basic, this inquiry focuses on a party's and an attorney's duty to preserve evidence,” the committee said. It added that lawyers must remember “that this duty applies to information regardless of form, i.e., discoverable information may not be concealed or destroyed regardless whether it is in paper, electronic or some other format.”
After another prefatory admonition--that “as social media evolves, so will the ethical issues related to it”--the committee said numerous Pennsylvania Rules of Professional Conduct are implicated in this scenario:
• Rule 1.1 establishes a duty to provide competent representation and, the panel said, requires a lawyer to “(1) have a basic knowledge of how social media websites work, and (2) advise clients about the issues that may arise as a result of their use of these websites.”
• Rule 3.4(a) states that a lawyer may not “unlawfully obstruct another party's access to evidence.” The committee said this prohibits counseling a client to “alter, destroy, or conceal” relevant social media information, but does not forbid advising a client to make profiles “private” or “delete information that may be damaging” from a social media page.
• Rule 3.4(a) does, however, require a lawyer to “take appropriate action to preserve” any information that a client was urged to delete “in the event it should prove to be relevant and discoverable,” it said.
• Rule 3.3(a) imposes a duty of candor toward tribunals. The committee said this requires a lawyer to “take reasonable remedial measures, 'including, if necessary, disclosure to the tribunal' if the lawyer learns that a client has destroyed evidence.”
• Rule 4.1 requires lawyers to “be truthful when dealing with others on a client's behalf,” the committee said. This obligates an attorney to “make reasonable efforts to obtain” relevant information from social media websites “if the lawyer knows or has a reasonable belief that a client possesses” such information, it advised, adding: “The lawyer is not obligated, however, to obtain information that was neither in counsel's possession nor in the client's possession.”
• Rule 8.4(c) forbids conduct involving dishonesty, fraud or misrepresentation. A lawyer would violate this prohibition, the committee said, by providing an opposing party “with incomplete information, without so noting” in response to a discovery request for social media data.
The committee noted that some of its conclusions are also found in “Social Media Ethics Guidelines,” a March 2014 report prepared by the Commercial and Federal Litigation Section of the New York State Bar Association. See 30 Law. Man. Prof. Conduct 215.
The opinion also cites several cases involving attorneys who were sanctioned for destroying or concealing social media evidence, or for failing to properly counsel clients on their duties to preserve such materials.
But references to ethics opinions are less frequent: the panel cited just one such advisory--a July 2013 opinion from the New York County bar's ethics committee. See New York County Ethics Op. 745, 29 Law. Man. Prof. Conduct 438 (2013).
Several jurisdictions have adopted opinions that deal with the propriety of using the Internet to investigate opposing parties, witnesses, jurors and other trial participants. See 30 Law. Man. Prof. Conduct 292.
But a review of available literature indicates that the Philadelphia and New York County committees are the only ethics panels to date that have provided formal guidance on a lawyer's duties to preserve clients' social media information.
At least two other bar committees are currently considering those issues, however. See Florida Proposed Advisory Op. 14-1 (March 12, 2014); North Carolina Proposed Ethics Op. 2014-5 (April 24, 2014) (suggesting that lawyer may advise client to remove information on social media if not spoliation or otherwise illegal).
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