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July 29th, 2013
Can Lawyers Advise Clients to Delete Social Media Content?
Increasingly, lawyers are faced with questions about whether - and to what extent - they should advise clients about the use of social media. While news reports and ethics opinions have focused primarily on lawyers' social media use, the issue of client counseling has received less attention. Now, a new ethics Opinion by the New York County Lawyers Association concludes that lawyers may ethically counsel clients about their use of social media, including, in some circumstances, advising them to "take down" social media content. It is an important opinion for New York practitioners. Here is a brief summary.
First, the Opinion states that a lawyer may advise her client about what the client should and should not post on social media - as long as the lawyer does not participate in the creation of false evidence. The Opinion permits lawyers to counsel clients to publish truthful information on social media that is favorable to the clients' legal position.
Second, the New York Rules of Professional Conduct do not bar a lawyer from advising her client to take down social media content, as long as the lawyer and client are not bound by a duty to preserve the material under substantive law. For example, if a lawsuit is anticipated or underway, there is a duty to preserve relevant evidence, including evidence located on social media.
Third, a lawyer may counsel her client about the legal implications of the client's social media content, including how it might be used for or against the client in a civil case.
While most of the Opinion is couched in terms of what a lawyer may do, the Opinion also notes that lawyers "could, in some circumstances" have "an obligation to advise clients" concerning their use of social media (emphasis added). The Opinion leaves open, however, what circumstances would trigger such a duty. One example, alluded to above, is the duty to instruct clients to preserve relevant social media content in a lawsuit. Recent cases have demonstrated that failure to do so could result in sanctions and/or disciplinary charges. In Lester v. Allied Concrete Co., for example, a Virginia attorney who counseled his personal injury client to "clean up" his Facebook page by deleting several compromising photos was required to pay $542,000 in sanctions and now faces a disciplinary hearing. Likewise, in Gatto v. United Airlines, a New Jersey federal court sanctioned a party with a negative inference for deactivating his Facebook account and erasing relevant data. Indeed, the mere act of deleting social media content, even innocuous or irrelevant content, may appear suspicious to courts and other judicial bodies.
In sum, if a lawyer advises a client to remove one or more social media postings, the lawyer should create a clear record indicating the reason for the decision, what was removed, and when. Copies of deleted content should be preserved in case a dispute arises later.
If you have any questions about this ethics Opinion, or about other legal ethics and professional responsibility issues, please contact Nicole Hyland at (212) 826 5552 or firstname.lastname@example.org, Ronald Minkoff at (212) 705 4837 or email@example.com, Richard Maltz at (212) 705 4804 or firstname.lastname@example.org, or any other member of the Frankfurt Kurnit Legal Ethics and Professional Responsibility Group.
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