Opinion addresses ‘cleaning up’ clients’ social media accounts
After some minor amendments, a proposed ethics advisory opinion addressing how lawyers before litigation can advise clients on “cleaning up” their social media accounts has been approved by the Bar’s Professional Ethics Committee.
Since the amendments were considered minor, and this was the committee’s second review of the proposed opinion, it constitutes final action on the opinion unless it is appealed to the Bar’s Board of Governors.
The committee considered PAO 14-1 at its June 25 meeting at the Bar’s convention. The inquiring attorney asked about advising a client on removing photos and information from social sites related and unrelated to the matter for which the attorney is hired before litigation is filed.
The attorney also asked if he could advise the client to change the privacy settings on the social media accounts prior to litigation and whether the attorney must advise the client not to remove photos and information, whether related to the incident or not, or change the privacy settings prior to litigation.
The committee noted that Bar Rule 4-3.4(a) prohibits a lawyer from blocking or instructing a client to block access to any material that is relevant to a pending proceeding or “a reasonably foreseeable proceeding.”
It advised the attorney that he could counsel the client to increase privacy settings and to remove information as long as an appropriate record was kept and there was no violation of any rule or substantive law.
On other matters, the committee upheld Bar staff’s refusal to address an inquiry about whether members of a law firm could represent clients before a city commission and various city boards after a member of the firm was appointed as a city zoning hearing officer. Bar staff found, and the committee agreed, that the hearing officer’s conduct was covered under the code of judicial conduct and there was insufficient information to address other firm lawyers appearing before city agencies. The inquirer was referred to Bar Rule 4-1.7(a)(2), which addresses conflicts of interest.
The committee also upheld the Bar staff in advising an attorney who held client funds to follow state law and “treat the funds as abandoned property” when the client does not respond to repeated attempts to turn over the funds.
