Providing a client with competent and diligent representation is one of the many duties of a lawyer, according to Rule 1.1 and Rule 1.3 of the North Carolina Rules of Professional Conduct. Part of the duty of competence is a lawyer’s duty to know and understand how social media information that is relevant and material to a client’s legal matter can impact the client’s case. Social media is increasingly being offered as evidence in trial, which is why it is important for lawyers to remain updated regarding ethical considerations when advising a client about his or her social media posts.
Lawyers may counsel clients to delete posts from their social media sites if the removal would not violate any law or regulation.
Only two ethics panels to date have formally guided lawyers in carrying out their duties to preserve their clients’ social media information. The Professional Ethics Committee of the New York County Lawyer Association was the first to publish formal guidelines regarding clients’ social media posts in July 2013. The New York County Lawyer Association concluded that lawyers may advise clients to remove online information damaging to the client’s position in a civil matter, but only if such advice does not violate ethics rules on fairness to others or substantive law governing spoliation.
Second was The Philadelphia Bar Association’s Philadelphia Ethics Op. 2014-5, released in July 2014, which concluded that lawyers may counsel clients to delete posts from their social media sites if the removal would not violate any law or regulation. An attorney, the opinion explained, is not prohibited from instructing a client to “delete information that may be damaging from the client’s [Facebook page].” However, lawyers are expected to appropriately act “to preserve the information in the event it should prove to be relevant and discoverable.”
The Florida State Bar Association and the North Carolina Bar Association are currently considering guidelines for counseling clients about social media posts. North Carolina’s Ethics Committee’s opinion, Proposed 2014 Formal Ethics Opinion 5, Advising a Civil Litigation Client about Social Media, suggests that lawyers are required to advise a client about social media posts that are relevant and material to representing the client. The proposal further suggests that lawyers may advise a client to remove posts on social media except if spoliation would occur or if it would otherwise be illegal.
If a client’s post might impact his or her legal matter, then the North Carolina Ethics Committee advises that the lawyer should educate the client about the legal ramifications of existing and future posts, as well as third-party comments. Furthermore, the opinion states that “[a]dvice should be given before and after the lawsuit is filed.” In effect, lawyers should obtain and review their clients’ posts to determine the relevancy and impact of the post before instructing the client to act.
Lawyers generally cannot instruct a client to remove existing relevant posts because such posts may need to be preserved for evidence at trial. However, many jurisdictions recognize that lawyers may need to instruct their clients to take action regarding their presence online to protect their client from bias or harm during trial. Lawyers often review and discuss existing posts, discuss which posts may be removed, instruct the client to change security and privacy settings on social media pages to the highest level of restricted access, and advise about posting on social media in the future.
The North Carolina Ethics Committee’s opinion appreciates the concerns lawyers may have about their clients’ social media profiles, however, the opinion reminds lawyers that they must first comply with preservation and evidence spoliation laws. According to Rule 1.2(d) of the North Carolina Rules of Professional Conduct, a lawyer cannot counsel a client to engage in, or assist a client with, conduct the lawyer knows is criminal or fraudulent. Thus, before removing an existing post, a lawyer should carefully consider spoliation and obstruction of justice laws to determine whether its removal would violate the law.
Upon instructing a client to remove a social media post, lawyers should also advise the client to preserve the social media post if the post’s destruction could potentially constitute spoliation.
Black’s Law Dictionary defines spoliation as “[t]he intentional destruction, mutilation, alteration, or concealment of evidence. If proved, spoliation may be used to establish that the evidence was unfavorable to the party responsible.” According to the doctrine of spoliation of evidence, “where 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.”
Upon instructing a client to remove a social media post, lawyers should also advise the client to preserve the social media post if the post’s destruction could potentially constitute spoliation. Such posts are usually preserved by printing the content of the post or saving the content to a memory stick, CD, DVD, or other technology. By preserving the content of the post, lawyers can then advise clients to take action that will mitigate the harms of having damaging content available to the public.
Lawyers should notify clients about the potential consequences of their digital footprints while also abiding by the ethical boundaries to ensure fairness to the opponent and to the court.
The following North Carolina Rules of Professional Conduct provide additional assistance in considering the ethical duties of lawyers regarding dealing with their clients’ social media posts:
- Rules 3.3 and 3.4 impose the duty to apply the ethical rules and concepts of fairness to opposing counsel and the court. Specifically, Rule 3.3(a)(3) states that a lawyer must promptly take remedial action in a case of any known material false testimony. So, although it is suggested that a lawyer is ethically permitted to advise a client to remove harmful online information, a client must still answer truthfully, subject to the rules of privilege and other evidentiary objections, if asked whether a social media site ever had changes. Otherwise, the client’s lawyer may have to disclose the truth. Rule 3.4(a) states that 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. A lawyer shall not counsel or assist another person to do any such act.”
- Lawyers must “be truthful when dealing with others on a client’s behalf,” as required by Rule 4.1.
- Rule 8.4(c) forbids conduct involving dishonesty, fraud, deceit or misrepresentation.
The North Carolina State Bar’s guidance on this topic is still in a proposed opinion stage. However, it advances the clarification of the duties of lawyers with respect to using and preserving social media evidence in civil litigation.
Litigation regarding social media discovery grows and evolves every day. As social media posts are increasingly used as evidence in trial, lawyers will have to notify clients about the potential consequences of their digital footprints while also abiding by the ethical boundaries to ensure fairness to the opponent and to the court. This can best be accomplished by preserving social media posts before advising a client to remove potentially damaging content.