Proceed with caution! The intersection between social media and attorney ethics is fraught with peril. In fact, all professionals should be on high alert when interacting with clients or would-be clients on social media sites. You all know this and you’ve heard it before from your friends at PL Matters and others. Still, there is no shortage of social media blunders impacting the PL community. The Philadelphia Bar Association Professional Guidance Committee recently released an ethics opinion addressing four common questions facing lawyers whose clients use social media websites. These pointers are helpful to all.
The Philadelphia Bar Association addressed the following questions:
- Whether a lawyer may advise a client to change the privacy settings on a social medial page from public access to a private setting;
- Whether a lawyer may instruct a client to remove a photo or other content that may be damaging to the client’s case;
- Whether a lawyer responding to document requests must produce copies of photographs posted by the client, which the lawyer previously viewed, but did not print or download; and
- Whether a lawyer responding to document requests must produce a copy of a photograph posted by someone other than the client to the client’s social media page, which the lawyer previously viewed, but did not print or download.
The Committee noted that these questions implicate numerous rules of professional conduct, including a lawyer’s duty to provide competent representation, to be honest toward the tribunal, to act fairly to the opposing party and counsel, and to avoid deceit or misrepresentation. With these rules in mind, the Committee addressed each of the above questions.
First, the Committee determined that it may be permissible for a lawyer to instruct a client to change the privacy settings on a social media page, so long as the client preserves information on the social media website that may be relevant to specific proceedings. The Committee explained that this action is appropriate because the information may still be obtained through discovery or subpoena.
Second, the Committee determined that a lawyer has an ethical obligation to comply with discovery requests and produce any social media content posted by a client, including posts that may be unfavorable to the client. To this end, a lawyer must make reasonable efforts to obtain a photograph, link, or other content about which the lawyer has knowledge if it has not been produced by the client. However, if the items were under the control of a third party, then the lawyer does not have an obligation to produce the information.
Given the constantly changing nature of social media websites, clients may be tempted to remove information that may be damaging in litigation. However, doing so could expose the client to claims of spoliation and lead to sanctions. Therefore, lawyers must advise clients about how to manage the content of a social media account at the outset of litigation, and instruct them to preserve all relevant content. Improper management of social media accounts could compromise a client’s case and lead to potentially damaging ethics violations.
Although this opinion specifically allied to Pennsylvania attorneys, the general concepts are instructive to all attorneys.