2014 Formal Ethics Opinion 5: Advising a Civil Litigation Client about Social Media
Photo Courtesy of the North Carolina State Bar
View the Formal Ethics Opinion in Full Here
The North Carolina State Bar Council decided to withdraw 2014 Formal Ethics Opinion 5 Advising a Client About Social Media that was adopted July 25, 2014. Instead, at its July 17, 2015 meeting, the State Bar released a substitute opinion for 2014 FEO 5.
According to the opinion, if the client’s social media postings could be relevant and material to that client’s legal matter, a lawyer must advise the client about the legal ramifications of those social media postings. Advising the client on the social media postings is required under the duty to provide competent representation to clients under the Rules of Professional Conduct Rule 1.1. Thus in order to provide competent representation, the lawyer must be aware of “the benefits and risks associated with the technology relevant to the lawyer’s practice,” and relevant technology includes social media.
Additionally, a lawyer must first research the law on preservation of information, spoliation of evidence, and obstruction of justice before instructing a client to remove postings on social media. If removing the postings constitutes either, the lawyer could be in violation of Rule 1.2(d)—assisting a client to engage in conduct the lawyer knows is criminal or fraudulent. However, if removing the social media posts does not constitute spoliation or obstruction of justice, then the lawyer may advise a client to remove the postings and take possession of any printed images of the client’s postings for preservation. The opinion also adds that a lawyer may advise a client to change security and privacy settings on social media pages as long as it is not a violation of law or a court order.
