Hello everyone and welcome to this Ethics Alert which will discuss the recent final approval of Florida Bar ethics proposed advisory opinion 14-1 by the Bar’s Professional Ethics Committee. The proposed ethics opinion states, with caveats, that lawyers may advise clients to “clean up” social media pages (including Facebook, Twitter, Instagram etc.) in anticipation of litigation to “remove embarrassing information that the lawyer believes is not material to the litigation matter”. The proposed ethics opinion is Florida Bar Advisory Op. 14-1 (June 25, 2015) and the proposed ethics opinion is online here: https://www.floridabar.org/TFB/TFBResources.nsf/Attachments/B806500C941083C785257E730071222B/$FILE/14-01%20PAO.pdf?OpenElement
On June 25, 2015, the Bar’s Professional Ethics Committee voted to affirm proposed ethics Advisory Opinion 14-1 with slight modifications after receiving comments from Florida Bar members. The opinion 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 opinion further states 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 proposed ethics 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.”
Under Bar procedural rules, any Florida Bar members who previously commented on the proposed opinion have 30 days to seek Board of Governors review. If no Board of Governors review is requested (or if there is a BOG review and the opinion is approved), the proposed advisory opinion will become final.
Bottom line: this proposed opinion provides 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”.
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