By Shelly Skinner
Nowadays, it’s hard for a lawyer to ignore the ubiquity of social media and its potential to impact clients’ cases. Some jurisdictions have even said that a lawyer’s duty of competence includes competence with social media.[1]
The State Bar of California has not explicitly adopted this position, but its legal ethics rules do require that attorneys provide competent representation to their clients, which includes “the duty to keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology”[2] or to professionally consult with another lawyer whom the attorney reasonably believes to be competent.[3]
Because social media has become a natural component of everyday life for so many people, lawyers have been receiving questions from clients about their social media activity. One interesting question involves whether it is appropriate for a client to remove content from their social media accounts that may be relevant to a legal matter.
The State Bar of California has not weighed in on whether it is ethically permissible for a lawyer to advise clients to remove social media content; however, several other jurisdictions have issued pertinent ethics guidance on this matter.
For example, Florida issued an ethics opinion stating that a lawyer may advise their clients to remove information from their social media accounts, even if it is relevant to foreseeable litigation, as long as such conduct would not violate the rules or substantive law pertaining to the preservation and/or spoliation of evidence.[4]
Similarly, New York’s Social Media Guidelines provide that an attorney may advise a client about removing content from social media, whether it was posted by the client or someone else; “however, the lawyer must be cognizant of preservation obligations … including legal hold obligations,” and information that is subject to a duty to preserve may not be deleted unless “an appropriate record of it has been preserved.[5]
The New York County Bar Association also states that the legal ethics rules do not prohibit attorneys from advising their clients to remove social media content, as long as such removal would not violate the substantive law regarding destruction or spoliation of evidence. Further, attorneys may “advise the client how social media posts may be received and/or presented by the client’s legal adversaries and advise the client to consider the posts in that light.”[6]
Both the North Carolina State Bar and the Pennsylvania Bar Association say that it is permissible for a lawyer to instruct a client to remove social media posts, as long as the removal complies with the relevant legal authority regarding preservation and spoliation and doing so would not otherwise be illegal.[7]
Likewise, the Philadelphia Bar Association provides that a lawyer may “instruct a client to delete information that may be damaging from the client’s page, but must take appropriate action to preserve the information in the event it should prove to be relevant and discoverable.”[8]
West Virginia states that a lawyer may instruct a client to delete information that may be damaging to the client from the client’s social media pages, as long as the lawyer’s conduct does not constitute spoliation and is not otherwise illegal. Additionally, lawyers must take the appropriate steps to preserve the deleted information in case it is deemed discoverable or becomes relevant to the client’s case.[9]
So, what should a California lawyer do? First, when advising clients about the propriety of removing social media content, California attorneys must be mindful of the requirements of applicable statutes, rules, regulations, or common law, particularly those pertaining to spoliation and the preservation of evidence.[10]
Moreover, California attorneys should pay special attention to Rules 3.3, 3.4, and 4.1, which relate to candor to the tribunal, fairness to the opposing party and counsel, and making truthful statements.[11] For example, if a client deletes a social media post without properly preserving it and then tries to re-create it, the lawyer may not offer the re-created post into evidence as the original post. In addition, a lawyer may not counsel a client to destroy social media content that has potential evidentiary value unless the evidence has been properly preserved. The lawyer must also provide truthful representations regarding the preservation and production of evidence, including whether certain social media content was deleted.
Finally, California lawyers should heed the cautionary tale of Allied Concrete Co. v. Lester, 285 Va. 295 (2013). In that case, the Supreme Court of Virginia upheld the trial court’s sanctions against the plaintiff and plaintiff’s attorney for engaging in spoliation, which included the plaintiff’s attorney instructing his paralegal to tell the plaintiff to delete photos from Facebook. In addition, during discovery, when defense counsel sought certain photos from plaintiff’s Facebook page, the plaintiff’s attorney instructed the plaintiff to deactivate his Facebook account and then responded to the discovery request that the plaintiff did not have a Facebook page. A $180,000 sanction was imposed on the plaintiff, while a $542,000 sanction was imposed upon the plaintiff’s attorney! The plaintiff’s attorney was also suspended from the practice of law for FIVE years.
To delete or not to delete … that is the ethical question. As attorneys, it seems like madness to advise a client to delete information with potential evidentiary value. But as the ethics opinions above demonstrate, deleting is permissible as long as there has been proper preservation. Thus, to borrow from Hamlet again, “though this be madness, yet there is method in’t.”[12]
[1] D.C. Bar Ethics Op. 371 (2016)(“Because the practice of law involves use or potential use of social media in many ways, competent representation under Rule 1.1 requires a lawyer to understand how social media work and how they can be used to represent a client zealously and diligently under Rule 1.3. Recognizing the pervasive use of social media in modern society, lawyers must at least consider whether and how social media may benefit or harm client matters in a variety of circumstances”); N.H. Bar Ass’n Op. 2012-13/05 (2012)(lawyers “have a general duty to be aware of social media as a source of potentially useful information in litigation, to be competent to obtain that information directly or through an agent, and to know how to make effective use of that information in litigation”); N.Y. State Bar Ass’n Social Media Ethics Guidelines (updated 2019) (“A lawyer has a duty to understand the benefits, risks and ethical implications associated with social media, including its use for communication, advertising, research and investigation”); Pa. Bar Assoc. Formal Op. 2014-300 (2014) (“As a general rule, in order to provide competent representation under Rule 1.1, a lawyer should advise clients about the content of their social media accounts, including privacy issues, as well as their clients’ obligation to preserve information that may be relevant to their legal disputes….”); Phila. Bar Ass’n Prof’l Guidance Comm. Op. 2014-5 (2014)(“a lawyer should (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); W. Va. Legal Ethics Op. 2015-02 (2015)(“[A]ttorneys should both have an understanding of how social media and social networking websites function, as well as be equipt [sic] to advise their clients about various issues they may encounter as a result of their use of social media and social networking websites”).
[2] Cal. Rules of Prof’l. Conduct. Rule 1.1, Cmt. 1.
[3] Cal. Rules of Prof’l. Conduct, Rule 1.1(c).
[4] Fla. Bar Ethics Op. 14-1 (2015).
[5] N.Y. State Bar Ass’n Social Media Ethics Guidelines, Guideline 5.A.
[6] N.Y. Co. Lawyers Ass’n Ethics Op. 745 (2013).
[7] N.C. Bar Formal Ethics Op. 5 (2015); PA. Bar Ass’n Formal Op. 2014-300.
[8] Phila. Bar Ass’n Prof’l Guidance Comm. Op. 2014-5.
[9] W. Va. Legal Ethics Op. 2015-02.
[10] See State Bar of Cal. Standing Comm. on Prof. Responsibility and Conduct Formal Op. No. 2015-193, n. 6 (“Spoliation of evidence can result in significant sanctions, including monetary and/or evidentiary sanctions, which may impact a client’s case significantly.”)
[11] See Bus. & Professions Code § 6068(d), requiring a lawyer to use those means only as are consistent with truth and never to seek to mislead any judicial officer by artifice or false statement of fact or law.
[12] William Shakespeare, Hamlet, act 2, sc 2.