The Virginia State Bar suspended a lawyer from practicing law for five years after he instructed his client to clean up his Facebook account.
Representing a man in a wrongful death suit whose wife died, the lawyer told a paralegal to tell his client to delete a photo that showed him holding a beer and wearing an “I [heart] hot moms” T-shirt.
While disciplinary action for spoliation of evidence on social media sites is rare, court-ordered sanctions against lawyers and their clients have increased as attempts to obtain evidence from social media has become a standard litigation practice.
Now the Florida Bar is joining the list of state and local bar groups grappling with how best to provide guidance to lawyers asking what they can and can’t advise clients about social media.
On June 27, the Florida Bar’s professional ethics committee will consider a proposed advisory opinion requested by a lawyer. A final decision on whether to make the proposed opinion, which was not completed as of late May, a formal ethics opinion may not be made at the meeting.
The lawyer asked four questions: Can a lawyer advise a client to remove photos and posts from social media sites that are related to the reason the lawyer was hired? Can an attorney advise a client to remove information that is unrelated to why the lawyer was hired? Can the lawyer advise a client on what privacy settings to use? Before litigation, does the lawyer have a duty to advise a client not to remove postings?
“There is a lack of precedent in Florida,” said Tampa attorney and committee chair Loretta Comiskey O’Keefe. “The committee believes guidance is important on this issue.”
In an example of bar actions elsewhere, the New York State Bar Association on March 18 published its social media ethics guidelines for attorney advertising, furnishing legal advice through social media, review and use of evidence from social media, ethically communicating with clients, and researching social media profiles or posts of prospective and sitting jurors.
One guideline states a lawyer can advise a client on what content can be placed or made private on a social media account, and what may be removed, as long as there is no violation of laws or regulations on the preservation of evidence. Information from an account that is subject to a duty to preserve can’t be removed unless a copy is made.
Jan Jacobowitz, director of the professional responsibility and ethics program at the University of Miami School of Law, said it would be helpful if the Florida Bar provided more guidance to lawyers. “The issue of whether you can take something down from Facebook before litigation has been heavily debated,” she said.
Her program provides continuing legal education to lawyers and judges on ethics issues. Not long ago, lawyers showed little interest in social media ethics.
“Now, they are coming to me and asking for it,” she said. “There is a growing awareness of the importance of understanding social media and technology in the practice of law.”