The Risk Manager, Winter 2014
You may have heard of the Virginia lawyer who was required to pay opposing counsel $542,000 and was suspended from practice for five years for advising a client to delete parts of his Facebook page. The lawyer represented the client in a wrongful death suit. The client’s wife was killed when the defendant’s cement truck crossed the centerline and collided with the client’s car in which he and his wife were riding. After the defendant’s lawyers sought access to the client’s Facebook page, the lawyer had a paralegal advise the client to clean it up. As a result of this advice the client deleted 16 photos including one in which the client, an allegedly distraught widower, was holding a beer can and wearing a T-shirt with the inscription “I ♥ Hot Moms.”
Once again the Internet creates new ethical and legal issues for lawyers likely not covered when you were in law school – think Facebook, Twitter, Friendster, Flickr, LinkedIn. As one wag put it: “There’s no limits to human stupidity as far as what you can put on a Facebook page.” This truism is now seen as an opportunity to discover information about litigants that undermines their position or can be used as impeachment.
In the absence of any known Kentucky authority, the following guidance from an excellent New York ethics opinion* is offered for your analysis of the issues. The Ethics Committee considered the question in the context of a civil action: “What advice is appropriate to give a client with respect to existing or proposed postings on social media sites.” The Committee concluded that:
Lawyers should comply with their ethical duties in dealing with clients’ social media posts. The ethical rules and concepts of fairness to opposing counsel and the court, under RPC 3.3 and 3.4, all apply. 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 summed up its opinion as follows:
It is permissible for a lawyer to:
- Review what a client plans to publish on a social media page in advance of publication and those that have already been published.
- Guide the client appropriately on social media activity to include formulating a corporate policy on social media usage.
- Counsel a witness to publish truthful information favorable to the lawyer’s client.
- Discuss the significance and implications of social media posts (including their content and advisability).
- Advise the client how social media posts may be received or presented by the client’s legal adversaries and advise the client to consider the posts in that light.
- Discuss the possibility that the legal adversary may obtain access to “private” social media pages through court orders or compulsory process.
- Review how the factual context of the posts may affect an adversary’s perception.
- Discuss possible lines of cross- examination.
It is not permissible for a lawyer to:
- Direct or facilitate the client’s publishing of false or misleading information that may be relevant to a claim; an attorney may not participate in the creation or preservation of evidence when the lawyer knows or it is obvious that the evidence is false.
This opinion is sensible and consistent with the Kentucky Rules of Professional Conduct. It is a good place to start research on a social media ethics issue and is readily available with a Google search. Do not forget to avail yourself of the KBA Ethics Hotline if in doubt about the proper advice to give on social media issues.
*Advising A Client Regarding Posts On Social Media Sites, New York County Lawyers Ass’n Comm. On Professional Ethics, Op. 745, 7/2/13.