The National Law Review recently published an article about the Florida Bar Association’s stance on attorneys advising their clients to “clean-up” their social media accounts prior to litigation being initiated. This stance was articulated in an advisory opinion by the Professional Ethics Committee.
As a part of its review the committee indicated that once litigation had commenced the normal rules of discovery and spoliation applied. The committee cited cases where attorneys were sanctioned and fined for advising their clients to delete social media information after litigation had been commenced.
The Florida Professional Ethics Committee arrived at this finding after reviewing the applicable Florida Bar Rule [4-3.4(a)] other Bar Associations’ standards (e.g. New York, North Carolina, Pennsylvania)As to the issue of pre-litigation advise to clients. In summary the Professional Ethics Committee found that that:
“… a lawyer may advise that a client change privacy settings on the client’s social media pages so that they are not publicly accessible. Provided that there is no violation of the rules or substantive law pertaining to the preservation and/or spoliation of evidence, a lawyer also may advise that a client remove information relevant to the foreseeable proceeding from social media pages as long as an appropriate record of the social media information or data is preserved.”
This opinion, and the standards of other Bar Associations demonstrates the precarious challenges faced when advising clients about their social media accounts. First, an attorney may have an obligation to advise clients about the laws of preservation and spoliation of information contained their social media accounts. Secondly, if an attorney advises a client to change privacy settings and/or delete certain information, that information should be preserved if it is relevant to reasonably foreseeable litigation.
What I will say about this in plain speak is that this appear to be a bit of a shell game. You can hide it, you can remove it, but it needs to be kept somewhere out of sight. So what does this mean for counsel involved in litigation? Counsel needs to make sure that their discovery covers not only information contained on social media accounts, but also any preserved information that has been deleted from a party’s social media accounts.
Feedback and shares welcome. Please let me know what you think of this post, other posts, or my blog. Thank you for visiting!