Ethical Obligations to Clean Up Social Media Pages
A Florida attorney asked the state bar association regarding the ethical obligations on advising clients to “clean up” their social media pages before litigation begins. This is to remove any embarrassing information that the attorney believes is not pertinent to the issues within the litigation. The four questions posed to the bar association included the following:
- Pre-litigation, may a lawyer advise a client to remove posts, photos, videos, and information from social media pages/accounts that are related directly to the incident for which the lawyer is retained?
- Pre-litigation, may a lawyer advise a client to remove posts, photos, videos, and information from social media pages/accounts that are not related directly to the incident for which the lawyer is retained?
- Pre-litigation, may a lawyer advise a client to change social media pages/accounts privacy settings to remove the pages/accounts from public view?
- Pre-litigation, must a lawyer advise a client not to remove posts, photos, videos and information whether or not directly related to the litigation if the lawyer has advised the client to set privacy settings to not allow public access?
In New York, the New York County Lawyers Association issued an ethics opinion addressing the clean-up of social media pages. Their opinion stated that attorneys are allowed to advise their clients to use the highest level of privacy settings on their social media pages and may advise clients to remove information unless the lawyer has a duty to preserve the information and there is no violation of law for spoiling evidence. Since this opinion, North Carolina and Pennsylvania have released similar opinions.
Ruling of the Bar Association
The court ruled that correct question to begin an inquiry is whether the information on the social media pages is relevant to the proceeding, rather than whether it is directly related or not reasonably related to the client matter. In Florida, the Second District Court of Appeal has already ruled that “normal discovery principles apply to social media, and that information sought to be discovered from social media must be . . . relevant to the case’s subject matter, and admissible in court or reasonably calculated to lead to evidence that is admissible in court.”
The Florida Bar agreed with the opinion published in New York that a lawyer may advise a client to use the highest level of privacy settings on a client’s social media pages. The committee also agreed that “a lawyer may advise the client pre-litigation to remove information from a social media page, regardless of its relevance to a reasonably foreseeable proceeding, as long as the removal does not violate any substantive law regarding preservation and/or spoliation of evidence.”
Furthermore, The Florida Bar ruled that because of the issue of competence, the inquirer may have an obligation to advise the client regarding the removal of information about whether it would violate any legal duties regarding the preservation of evidence. Determining what information on a social media page is relevant to litigation is a factual question that must be decided on a case by case basis.
Contact a Florida Attorney Today
If you or someone that you know has questions regarding their social media and an upcoming case, let the experienced West Palm Beach attorneys at Gary Roberts & Associates help. Call the office or contact us today for a free and confidential review of your case.