Hello everyone and welcome to this Ethics Alert which will discuss the recent proposed Florida Bar ethics advisory opinion which finds that, inter alia, lawyers may ethically advise clients to “clean up” social media pages in anticipation of litigation “to remove embarrassing information that the lawyer believes is not material to the litigation matter”. The proposed advisory opinion is The Florida Bar Proposed Advisory Op. 14-1 (January 23, 2015) and the opinion is online here: https://www.floridabar.org/DIVEXE/RRTFBResources.nsf/Attachments/8E73C71636D8C23785257DD9006E5816/$FILE/14-01%20PAO.pdf?OpenElement=
The Professional Ethics Committee of The Florida Bar voted on January 23, 2015 to approve proposed Bar Advisory Opinion 14-1, which states: “(p)rovided that there is no violation of the rules or substantive law pertaining to the preservation and/or spoliation of evidence, a lawyer also may advise that a client remove information relevant to the foreseeable proceeding from social media pages as long as an appropriate record of the social media information or data is preserved.”
The proposed advisory opinion agrees with NYC Lawyers Association Ethics Opinion 745 (2013) which states that a lawyer may advise a client to use the highest level of privacy setting on the client’s social media pages. The opinion also agrees with the NYC opinion 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.
The proposed advisory opinion also cautions that, if the lawyer advises the client to remove information, “an appropriate record of the social media information or data must be preserved if the information or data is known by the lawyer or reasonably should be known by the lawyer to be relevant to the reasonably foreseeable proceeding. The committee is of the opinion that the general obligation of competence may require the inquirer to advise the client regarding removal of relevant information from the client’s social media pages, including whether removal would violate any legal duties regarding preservation of evidence, regardless of the privacy settings. If a client specifically asks the inquirer regarding removal of information, the lawyer’s advice must comply with Rule 4-3.4(a). What information on a social media page is relevant to reasonably foreseeable litigation is a factual question that must be determined on a case-by-case basis.”
The opinion concludes that “a lawyer may advise that a client change privacy settings on the client’s social media pages so that they are not publicly accessible. Provided that there is no violation of the rules or substantive law pertaining to the preservation and/or spoliation of evidence, a lawyer also may advise that a client remove information relevant to the foreseeable proceeding from social media pages as long as an appropriate record of the social media information or data is preserved.”
This proposed Florida ethics advisory opinion is consistent with the recent North Carolina Ethics Opinion 5, (July 25, 2014), which also concludes that a lawyer may advise a client to remove information on social media if the removal does not constitute spoliation of evidence and is not illegal. The NC opinion further states that a lawyer must provide advice about information on social media if the social media postings are relevant to the client’s representation. NC Bar 2014 Formal Ethics Opinion 5 is here: https://www.ncbar.com/ethics/ethics.asp?page=5&from=7/2014
Bottom line: if it is approved, this Florida Bar ethics advisory opinion will provide important guidance to lawyers regarding the ethics issues surrounding the removal of information from social media by clients prior to foreseeable litigation and states that lawyers may advise clients to remove such information “as long as the removal does not violate any substantive law regarding preservation and/or spoliation of evidence”. The proposed advisory opinion must be reviewed and approved by the Board of Governors of The Florida Bar before it becomes final.
Be careful out there.
Disclaimer: this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.
Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
2454 McMullen Booth Road, Suite 431
Clearwater, Florida 33759
Office (727) 799-1688
Fax (727) 799-1670