By Gary Blankenship
Can lawyers advise clients to remove possibly damaging social media postings or make those postings harder to see if those postings might be part of future litigation?
The Professional Ethics Committee grappled with that question, which involved conflicting duties to preserve possible evidence in a lawsuit and protecting a client’s interest, at its June 27 meeting at the Bar’s Annual Convention.
After more than an hour of discussion and debate, the committee referred the matter to a special subcommittee, which will report at the PEC’s October meeting.
The committee is working on a formal advisory opinion to answer four questions from an inquiring attorney:
* Before litigation is started, can the lawyer advise the client to remove posts, photos, videos, or other information relating to the incident that may become subject to litigation?
* Can the lawyer advise the client to remove information from social media posts that is not directly related to the incident that may become the subject of litigation?
* Can the attorney advise the client to change the privacy settings on the client’s social media accounts so that information is removed from the public view?
* If the privacy settings are changed to preclude public view, can the attorney advise the client to remove information that may or may not be related to the possible litigation?
At issue is a lawyer’s duty under Bar Rule 4-3.4(a), which says that, “A lawyer must not unlawfully obstruct another party’s access to evidence or otherwise alter, destroy, or conceal a document or other material that the lawyer knows or reasonably should know is relevant to a pending or a reasonably foreseeable proceeding; nor counsel or assist another person to do any such act . . . .”
The comment to the rule further provides that, “Fair competition in the adversary system is secured by prohibitions against destruction or concealment of evidence, improperly influencing witnesses, obstructive tactics in discovery procedure, and the like.”
Bar staff prepared two alternative opinions for the committee’s consideration. One advised that the attorney could not advise that the information be removed but could advise the client to change the privacy settings. The second said the lawyer could advise the client to remove the information as long as it does not violate substantive law, but also instruct the client to keep a copy of the removed information.
Committee member Walter Hunston said attorneys would be committing an ethical violation if they failed to advise clients to remove potentially defamatory postings, since the longer the information was online the greater the potential damage.
“As an alternative that you cannot advise the client to remove that defamatory statement, and it will continue to be defamatory every single day, this is ridiculous,” he said. “Are we saying we can’t advise our client to do that?”
He advocated the second alternative, since that would retain a record of the posting.
Committee member Thomas Shults agreed.
“Can you tell a client under surveillance to close the curtains? Yes,” he said. “If a client tells you they have a paper diary and you ask where do they keep it and they say, ‘In the front yard,’ and if you advise them to remove it and put it in a locked safe, have you done something wrong? I don’t think so.”
Committee member Keith Rizzardi said he didn’t think either alternative offered took into consideration privacy guarantees in the state and federal constitutions. He said the second option was the preferable opinion, adding, “Alternative one is unworkable.”
“It seems people should be free to do what they need to do as long as they are preserving evidence,” said committee Vice Chair Ana Martinez.
Other members questioned whether the two options offered any meaningful guidance and committee member Warren Lindsey argued that what constitutes social media needs to be defined. Does that, he queried, include both Facebook as well as five people having an online chat on issues of common interest?
The committee eventually voted overwhelmingly to create a subcommittee to craft a proposed advisory opinion. The subcommittee will report at the committee’s October 17 meeting.