PBCBA BAR BULLETINS pbcba_bulletin_March 2019 | Page 17

PROFESSIONALISM C o r n e r
SOCIAL MEDIA: PROFESSIONALLY & ETHICALLY
INSTRUCTING CLIENTS
JULIE N. PAGNI
Introduction
Technology
and
social
media
are
increasingly creeping into the practice of
law, if not taking over. This is evident by
amendments to the rules to address the
use of technology and the number of CLE
seminars informing practitioners on this
developing aspect in the legal profession.
Most attorneys either have had or will have
a client ask them about concealing, altering,
and/or deleting client’s social media activity.
No matter the social media platform,
Facebook, Twitter, Snapchat, or other social
media outlet, this article will touch on the
professional and ethical boundaries of such
instructions from attorneys to clients.
Florida Bar Ethics Opinion 14-1 makes a
distinction between instructing clients
regarding their social media activity
pre-litigation and advising clients once
litigation has commenced. When advising
a client in relation to their social media
activity, regardless of what stage of
litigation the matter is in, Rule 4-3.4(a) and
its comments govern and provide guidance.
Fla. R. Prof’l Conduct 4-3.4(a).
Rule 4-3.4(a) states that a lawyer must
not, (a) unlawfully obstruct another party’s
access to evidence or otherwise unlawfully
alter, destroy, or conceal a document or other
material that the lawyer knows or reasonably
should know is relevant to a pending or a
reasonably foreseeable proceeding; nor
counsel or assist another person to do any
such act. Id. 4-3.4(a). This rule accounts
for computerized information. Whether
the actions of a client or attorney amount
to concealment, alteration, destruction,
or unlawful obstruction, is a question of
law that goes beyond professionalism and
ethics.
Proper Inquiry
The proper inquiry when instructing a
client on “cleaning up” their social media, is
whether information contained in or on the
social media profile or page is relevant to a
reasonably foreseeable proceeding, and not
whether the information is directly related to
the client’s legal matter. The determination
of what information contained within social
media is relevant to reasonably foreseeable
litigation is a question of fact to be analyzed
case by case.
Instructing Clients Pre-Litigation
During the pre-litigation stage of a case, an
attorney may instruct a client to change the
privacy settings on their social media to
the highest level of privacy so the client’s
social media information is not publicly
accessible. Regardless of any relevance to a
reasonably foreseeable proceeding, counsel
may advise a client to remove or delete
social media content, as long as removing
or deleting the content does not violate any
substantive law, statute, court order, duty
to preserve evidence, and/or spoliation of
evidence. However, if the attorney instructs
a client to remove or delete content during
the pre-litigation phase, the social media
content must be preserved in the form of a
copy or one must store the data in another
electronic format, if the information is
known or reasonably should be known
to be relevant to reasonably foreseeable
litigation.
Instructing Clients During Litigation
Normal discovery principles apply when
seeking information from social media
platforms, in that the information to be
discovered from social media must be, “(1)
relevant to the case’s subject matter, and (2)
admissible in court or reasonably calculated
to lead to evidence that is admissible in
court.” Root v. Balfour Beatty Construction,
Inc., 132 So.3d 867, 869–70 (Fla. 2nd DCA
2014). Most case law surrounding the topic
of social media was formed in the context
of discovery or spoliation of social media
information once litigation was already
in progress. See, Allied Concrete Co. v.
Lester, 736 S.E.2d 699 (Va. 2013) (Monetary
sanctions were imposed against both the
lawyer and client for spoliation when
lawyer directed client to delete photographs,
social media accounts, and lawyer signed
discovery responses stating client did not
have any accounts.)
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A lawyer was suspended for five years after
directing a client to clean up a Facebook
page, leading to the deletion of photographs
and other material, after a request for
production was received by the lawyer. In
the Matter of Matthew B. Murray, 2013 WL
5630414, VSB Docket Nos. 11-070-088405
and 11-070-088422 (Virginia State Bar
Disciplinary Board July 17, 2013). During
the course of litigation, an attorney may
instruct a client to change the privacy
settings on their social media to the highest
level of privacy so the client’s social media
information is not publicly accessible,
without the fear of professional or ethical
backlash. The Florida Bar Ethics Committee
does not directly address removal or deletion
of client’s social media data once litigation
has begun. However, from the cases cited
within the ethics advisory opinion, one can
infer that relevant information contained
within a client’s social media outlet
cannot be removed or deleted, including
the account deactivated, once a request
to preserve such information was made
or a discovery request seeking such data
was received by the lawyer, especially if
the removal, deletion, or deactivation, is in
furtherance of a lawyer’s motive to deny
the existence of the information or account
outright.
Conclusion
The Florida Bar Ethics Committee
suggested that an attorney advising
a client on the subject of the client’s
social media information may trigger the
competency obligation of the attorney.
Fla. R. Prof’l Conduct 4-1.1. A lawyer must
provide competent representation to a
client. Competent representation requires
the legal knowledge, skill, thoroughness,
and preparation reasonably necessary for
the representation. Id. This may include
the need for the attorney to counsel the
client on removal of relevant information
and whether removal would violate any
(Con’t. on next page)