12.08. Reading: Advising A Civil Litigation Client About Social Media, Opinion 2014-5, July 17, 2015

Reading Guide

Preparing for the Reading:
Technology is becoming pervasive in every aspect of representation. Notice how this opinion cites to Rule 1.1’s competence obligation and the new amendment regarding technology. We can expect to see a lot more of these opinions moving forward.

Issues:
What are the parameters of what a lawyer can advice a client regarding postings on social media?

Advising a Civil Litigation Client About Social Media

Opinion 2014-5, July 17, 2015

Inquiry #1:

A client’s postings and other information that the client has placed on a social media[1] website (referred to collectively as “postings”) are relevant to the issues in the client’s legal matter and, if the matter is litigated, might be used to impeach the client. The client’s lawyer does not use social media and is unfamiliar with how social media functions.

What is the lawyer’s duty to be knowledgeable of social media and to advise the client about the effect of the postings on the client’s legal matter?

Opinion #1:

Rule 1.1 requires lawyers to provide competent representation to clients. Comment [8] to the rule specifically states that a lawyer “should keep abreast of changes in the law and its practice, including the benefits and risks associated with the technology relevant to the lawyer’s practice.” “Relevant technology” includes social media. As stated in an opinion of the New Hampshire Bar Association, N. H. Bar Ass’n Op. 2012-13/05, “counsel has 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.”

If the client’s postings could be relevant and material to the client’s legal matter, competent representation includes advising the client of the legal ramifications of existing postings, future postings, and third party comments.

Inquiry #2:

The client’s legal matter will probably be litigated, although a law suit has not been filed. May the lawyer instruct the client to remove postings on social media?

Opinion #2:

A lawyer may not counsel a client or assist a client to engage in conduct the lawyer knows is criminal or fraudulent. Rule 1.2(d). In addition, a lawyer may not unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value. Rule 3.4(a). The lawyer, therefore, should examine the law on preservation of information, spoliation[2] of evidence, and obstruction of justice to determine whether removing existing postings would be a violation of the law.

If removing postings does not constitute spoliation and is not otherwise illegal, or the removal is done in compliance with the rules and law on preservation and spoliation of evidence, the lawyer may instruct the client to remove existing postings on social media. The lawyer may take possession of printed or digital images of the client’s postings made for purposes of preservation. See N.Y. State Bar, Ethics Op. 745 (2013)(lawyer may advise a client about the removal of postings if the lawyer complies with the rules and law on preservation and spoliation of evidence).

Inquiry #3:

May the lawyer instruct the client to change the security and privacy settings on social media pages to the highest level of restricted access?

Opinion #3:

Yes, if doing so is not a violation of law or court order.

[1] “Social media” is defined as “forms of electronic communication ([such] as Websites for social networking and microblogging) through which users create online communications to share information, ideas, personal messages, and other content ([such] as videos).” Social Media, Merriam-Webster, Merriam-webster.com/dictionary/social%20media (last visited Jan. 20, 2015).

[2] Black’s Law Dictionary 1437 (8th ed. 2004) defines spoliation as the intentional concealment, destruction, alteration or mutilation of evidence, usually documents, thereby making them unusable or invalid. The doctrine of spoliation of evidence holds that when “a party fails to introduce in evidence documents that are relevant to the matter in question and within his control…there is a presumption, or at least an inference that the evidence withheld, if forthcoming, would injure his case.” Jones v. GMRI, Inc., 144 N.C. App. 558, 565, 551 S.E.2d 867, 872(2001) (quoting Yarborough v. Hughes, 139 N.C. 199, 209, 51 S.E. 904, 907-08 (1905)).