You’ve got a good – make that great – personal injury case. Liability is a lock: It is undisputed that, while lawfully in a crosswalk with the light in her favor, your client was struck by an EvilCorp. delivery truck after its intoxicated driver (while making work-related deliveries) ran a red light. Damages are potentially significant. One day, as you’re working on your opening statement, you get an email from opposing counsel containing a link to a video. “Hmmmm,” you say, as you click it.
What you see next positively ruins your day. It’s a video of your client, apparently acquired from her profile on a popular social media website. The video depicts her at her cousin Mildred’s wedding. Two months after the accident. Dancing the polka. Quite well, actually: no signs of pain whatsoever.
“Fudge!” you yell. Except you didn’t yell “fudge.”
After dealing with this issue in this case, you start thinking about all of your existing clients and their potentially case-destroying social media postings.
“Never again!” you say. Your first thought is to advise all of them to “scrub”, delete, take down, etc. any damaging information from any social media (or other) sites. (You also wonder if your adversary has engaged in unethical conduct to obtain access to the video.)
Not so fast: There are a number of ethical issues to consider first, which are addressed in the New York County Lawyers’ Association’s recently issued Ethics Opinion 745, entitled “Advising a Client Regarding Posts on Social Media Sites”.
The focus of Opinion 745 (and this post) is not the admissibility of potentially damaging social media evidence as a matter of substantive evidence law. That issue is being increasingly addressed in the courts, as well as by a number of commentators. See, for example, here, here, here, here, here, and here. Opinion 745 purports to “provide guidance about how attorneys may advise clients concerning what may be posted or removed from social media websites.”
It begins with a fairly (by this point) obvious observation:
The personal nature of social media posts implicates considerable privacy concerns. Although all of the major social media outlets have password protections and various levels of privacy settings, many users are oblivious or indifferent to them, providing an opportunity for persons with adverse interests to learn even the most intimate information about them. For example, teenagers and college students commonly post photographs of themselves partying, binge drinking, indulging in illegal drugs or sexual poses, and the like. The posters may not be aware, or may not care, that these posts may find their way into the hands of family, potential employers, school admission officers, romantic contacts, and others. The content of a removed social media posting may continue to exist, on the poster’s computer, or in cyberspace.
It continues by highlighting the usefulness of such information for attorneys:
That information posted on social media may undermine a litigant’s position has not been lost on attorneys. Rather than hire investigators to follow claimants with video cameras, personal injury defendants may seek to locate YouTube videos or Facebook photos that depict a “disabled” plaintiff engaging in activities that are inconsistent with the claimed injuries. It is now common for attorneys and their investigators to seek to scour litigants’ social media pages for information and photographs. Demands for authorizations for access to password-protected portions of an opposing litigant’s social media sites are becoming routine.
So you’ve got a client who uses social media. How can you navigate the ethical issues? What may you do, and what must you not do, to comply with your ethical obligations?
Generally, per Opinion 745, attorneys may ethically:
- Access a social media page open to all members of a public network.
- Advise a client to use the highest level of privacy/security settings that is available, thereby preventing opposing counsel from having direct access to the contents of clients’ social media pages and requiring them to request access through formal discovery channels.
- Review a client’s social media pages, and advise the client that certain materials posted on a social media page may be used against the client for impeachment or similar purposes. This is subject to New York Rule of Professional Conduct (RPC) 3.4, which says that an attorney may not “suppress any evidence that the lawyer or the client has a legal obligation to reveal or produce” or “conceal or knowingly fail to disclose that which the lawyer is required by law to reveal.”
- Advise a client to take down certain material from social media publications, provided that such removal does not violate the substantive law regarding the destruction or spoliation of evidence (as articulated in, for example, the First Department’s 2012 Voom v. Echostar decision).
- Review what a client plans to publish on a social media page in advance of publication, to guide the client appropriately.
- Counsel a witness to publish truthful information favorable to the lawyer’s client.
- Discuss the significance and implications of social media posts (including their content and advisability).
- Advise the client how social media posts may be received and/or presented by the client’s legal adversaries and advise the client to consider the posts in that light.
- Discuss the possibility that one’s adversary may obtain access to “private” social media pages through court orders or compulsory process.
- Review how the factual context of the posts may affect their perception.
- Review the posts that may be published and those that have already been published.
- Discuss possible lines of cross-examination.
Per Opinion 745, attorneys may not ethically:
- Make misrepresentations to obtain information that would otherwise not be obtainable.
- Proffer, support, or use factual statements that, upon review of the client’s social media postings, are materially false.
- Fail to correct a false statement of material fact or offer or use evidence the lawyer knows to be false. A lawyer could not, therefore, sit idly by and allow their client to testify that they had not changed their social media site, if the lawyer knows that that isn’t true.
- Direct or facilitate the client’s publishing of false or misleading information that may be relevant to a claim.
- Participate in the creation or preservation of evidence when the lawyer knows (or it is obvious) that the evidence is false.
The Opinion concludes:
Lawyers should comply with their ethical duties in dealing with clients’ social media posts. The ethical rules and concepts of fairness to opposing counsel and the court, under RPC 3.3 and 3.4, all apply. An attorney may advise clients to keep their social media privacy settings turned on or maximized and may advise clients as to what should or should not be posted on public and/or private pages, consistent with the principles stated above. Provided that there is no violation of the rules or substantive law pertaining to the preservation and/or spoliation of evidence, an attorney may offer advice as to what may be kept on “private” social media pages, and what may be “taken down” or removed.