To Delete or Not to Delete: Social Media and the Lawyer’s Role

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Editor’s Note: The Campbell Law Observer has partnered with the Brocker Law Firm, a local law firm that concentrates in ethics and disciplinary matters, to occasionally re-publish articles from the firm’s NC Legal Ethics blog.  The following article recently appeared as two articles on the firm’s site, along with other posts discussing ethics topics affecting North Carolina lawyers.

It began as a tragic accident, after a concrete truck crossed the center line and tipped over the car of a newly married 25-year-old woman.  However, the ensuing litigation effectively ended the career of Mathew Murray, a prominent and experienced Virginia lawyer and managing partner at one of the state’s largest personal injury firms.  What went so wrong?

Murray represented Isaiah Lester, the husband of the woman who died in the crash, in the personal injury action Lester v. Allied Concrete Co.  Murray’s problems began during discovery, when the defendant, Allied Concrete, requested access to Lester’s Facebook profile, including screenshots, pictures, messages, and status updates.  Through an email from his paralegal, Murray instructed Lester to “clean up” his Facebook page.  Following his lawyer’s advice, Lester deleted sixteen photos, including one of him holding a beer can while dressed in a T-shirt reading, “I (heart) hot moms.”  Intending to respond to the discovery request that no such account existed, Murray also instructed Lester to deactivate his Facebook.

Finding that these actions constituted an “extensive pattern of deceptive and obstructionist conduct,” the judge ordered Murray and Lester to pay $722,000 in sanctions.  The Virginia State Bar further disciplined Murray: he was suspended for five years for violating ethics rules governing candor toward the tribunal, fairness to opposing party and counsel, and misconduct.  According to reports, Murray has resigned from the firm and is retiring from the practice of law.

Duty to Counsel Clients and Prevent Spoliation

Social media evidence has proven to be a powerful investigative tool in recent years, and it will likely become even more prevalent to discovery in the future.  As such, a lawyer must be able to anticipate when social media will be relevant to a case and be cognizant of how to best counsel clients in that regard.  However, as the Lester case illustrates, social media can also create a minefield of ethical issues.

At the North Carolina State Bar’s quarterly meeting in July 2014, the Ethics Committee determined that competent representation includes advice about a client’s social media postings to the extent that they are relevant and material to the representation.   According to the Committee’s 2014 Formal Ethics Opinion 5, a lawyer has a duty to advise a client about social media and its potential effects on litigation both before and after a lawsuit is filed.

As a general rule, a lawyer should not instruct a client to destroy existing, relevant social media posts.  Such conduct is permissible only when it would not constitute spoliation of evidence.  In order to avoid spoliation, the lawyer must advise the client to preserve the content of deleted posts by printing or saving the material to a memory stick or other technology.  A lawyer may advise the client to change the privacy settings on social media sites, so long as doing so would not violate the law or a court order.

Additionally, advising a client to deactivate its Facebook account in order to allow the attorney to deny its existence is impermissible.  Such conduct would violate Rules 3.3(a)(1) and 8.4(c) of the North Carolina Rules of Professional Conduct, which respectively prohibit a lawyer from making false statements to the tribunal and engaging in conduct involving dishonesty or misrepresentation.  But even a casual request that a client “clean up” its social media profiles is likely insufficient to fulfill the lawyer’s duty of competent representation, whether discovery is pending or not.

 E-discovery

As E-discovery is now common practice, these mandates to counsel clients and prevent spoliation are somewhat intuitive.  Less obvious are other questions surrounding the ethics of social media: for example, may an attorney view public portions of social media accounts in order to gain information about an opposing party to litigation?  The answer seems to be yes, because no legal or ethical rules prohibit gathering this type of information through public sources.

A murkier issue is whether an attorney may “friend” an opposing party in order to gain access to non-public information.   Although the North Carolina State Bar has not yet spoken on the issue, such conduct would likely be problematic, at least in situations where the opposing party is represented by counsel.  Rule 4.2 prohibits communications with a person who is represented by counsel about the subject of their representation.  Sending an invitation to “friend” someone on Facebook is unquestionably a communication, but whether it constitutes an impermissible contact is less clear.

Because a mere “friend request” does not touch upon the subject of representation (or any subject at all, for that matter), a good argument can be made that it does not violate Rule 4.2.  If the attorney does not use an alias, communicate any false or misleading information, or try to elicit any information from the opposing party via social media, how could a simple invitation violate the Rules of Professional Conduct?

There is, of course, an equally strong counterargument to this debate.  Since the attorney’s motivation for making the request is to garner information about the opposing party that relates to the litigation and is not otherwise in the public domain, the communication is ostensibly “about the subject of the representation.”

Simply sending a “friend request” to an unrepresented party may be problematic under Rule 4.3(b).  The Rule directs that when a lawyer reasonably should know that an unrepresented person misinterprets the lawyer’s role in a matter, the lawyer is obligated to try to correct the misunderstanding.  The Committee has not yet opined on this issue in the context of social media, but an attorney would be wise to proceed cautiously before sending “friend requests” to unrepresented parties, given Rule 4.3(b)’s prohibitions.

A final issue for consideration is whether an attorney may direct another person, such as a relative or firm administrator, to “friend” an individual in order to gain access on the lawyer’s behalf.  Under those circumstances, it is less likely that the opposing party will recognize the name of the person making the “friend request.”  This is problematic, given that the invitation is motivated by the hope that the receiver will not know, and thus, will not feel threatened by, the person sending the request.  At the very least, this approach is misleading and is likely a violation of Rule 8.4(c)’s prohibition of conduct involving dishonesty, fraud, deceit, or misrepresentation.

These and other issues are likely to be addressed in the future, as social media continues to prove its value as a discovery tool.  Until these questions are answered, however, the prudent attorney will err on the side of caution.