2014 Formal Ethics Opinion 5: Advising a Civil Litigation Client About Social Media
View the Formal Ethics Opinion in Full Here.
Editor’s Note: At its meeting on July 17, 2015, the Ethics Committed voted to withdraw this opinion, and offer a substitute opinion. The substitute opinion can be found here.
During its quarterly meeting on July 25, 2014, the Ethics Committee voted to publish 2014 Formal Ethics Opinion 5. This opinion examines the issue of a client posting information on a social media website that could be used to impeach the client or could otherwise be relevant to issues in a potential lawsuit.
According to the opinion, a lawyer is generally required to advise a client about social media postings that are relevant and material to the client’s representation. A lawyer is allowed to advise a client to remove information from a social media site, so long as doing so will not constitute spoliation or another illegal act.
Rules 1.1 and 1.3 of the North Carolina Rules of Professional Conduct require a lawyer to provide competent and diligent representation to clients. Regarding relevant and material social media postings, this means that a lawyer must have knowledge of social media and understand how it will impact a given client’s case and credibility. The lawyer must advise the client of the legal implications of existing postings as well as future postings and third party comments.
Generally, a lawyer may not instruct a client to remove existing social media postings. Rule 1.2(d) states, “[a] lawyer shall not counsel a client to engage, or assist a client, in conduct the lawyer knows is criminal or fraudulent.” Thus, because relevant postings should generally be preserved, instructing a client to remove postings could constitute spoliation or obstruction of justice. In cases where destruction would potentially constitute spoliation, in addition to advising the client to take down the postings, the lawyer must also advise the client to preserve the postings by saving them in some way. The Committee noted that it would be good practice for the lawyer to save a copy of the postings, as well.
If destruction of social media postings would not constitute spoliation, a lawyer may advise a client to remove existing postings. Furthermore, the lawyer may instruct a client to change the security and privacy settings on social media sites to the highest level of restricted access, so long as doing so is not a violation of law or court order.
According to the opinion, relevant social media advice should be given both before and after the lawsuit is filed.