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Can attorneys advise their clients to remove, before litigation commences, social media pages and accounts which may contain potential evidence in a dispute? The Florida Bar's Ethics Committee took up this and similar questions in a recent proposed advisory opinion.
The state bar, like others, advises that lawyers must not advise clients to obstruct access to evidence the lawyer reasonably should know is relevant to pending or foreseeable proceedings.
Of course, like many ethical questions, there's a fair amount of wiggle room in the answer.
Facebook, Snapchat, and Other Sources of Evidence
That social media can be central to litigation comes as no surprise. In just the past week, social media has been central in revealing college students behaving badly and leading to potential litigation. Similarly, prosecutions for online acts such as cyberbullying are becoming more routine.
Florida's advisory opinion follows similar opinions by the New York, Pennsylvania, and North Carolina bars. All advise lawyers to not counsel their clients to destroy, remove, or otherwise impede access to information which the lawyer "should reasonably know" is relevant to a "reasonably foreseeable proceeding." What this means hinges on whether the social media information is related directly to a client's matter or not. Relevancy, the Florida Bar notes, is a factual, case-by-case matter.
What's Permissible Under the Proposed Opinion?
The proposed opinion states that lawyers are free to advise their clients to remove social media posts, accounts and information, as long as that does not violate relevant law regarding preservation of evidence. In such situations, however, an attorney is advised to create an "an appropriate record" of the information. Attorneys can also advise their clients to up the privacy settings on their social media pages.
As the opinion notes, advising a client to remove relevant evidence can result in significant penalties. In one instance, an attorney was sanctioned for half a million dollars after he advised a client to "clean up" his Facebook page by deleting potential evidence. The matter in that case involved a fatal automobile accident which left the client's wife dead. The client removed several potentially embarrassing photos and eventually deleted his Facebook account, resulting in the removal of evidence which could have been relevant to damages.