Ethics Opinion

Opinion 14-1

FLORIDA BAR ETHICS OPINION
OPINION 14-1
June 25, 2015
Advisory ethics opinions are not binding.
A personal injury lawyer may advise a client pre-litigation to change privacy settings on the
client’s social media pages so that they are not publicly accessible. Provided that there is no
violation of the rules or substantive law pertaining to the preservation and/or spoliation of
evidence, the lawyer also may advise that a client remove information relevant to the foreseeable
proceeding from social media pages as long as the social media information or data is preserved.
Note: This opinion was approved by The Florida Bar Board of Governors on October 16,
2015.
RPC:
Opinions:

Cases:

Misc.:

4-3.4(a)
New York County Ethics Opinion 745; North Carolina Formal Ethics Opinion 5;
Pennsylvania Bar Association Opinion 2014-300; Philadelphia Bar Association
Professional Guidance Committee Opinion 2014-5
Allied Concrete Co. v. Lester, 736 S.E.2d 699 (Va. 2013); Gatto v. United
Airlines, 2013 WL 1285285, Case No. 10-cv-1090-ES-SCM (U.S. Dist. Ct. NJ
March 25, 2013); In the Matter of Matthew B. Murray, 2013 WL 5630414, VSB
Docket Nos. 11-070-088405 and 11-070-088422 (Virginia State Bar Disciplinary
Board July 17, 2013); Romano v. Steelcase, Inc. 907 N.Y.S.2d 650 (NY 2010);
Root v. Balfour Beatty Construction, Inc.,132 So.3d 867, 869-70 (Fla. 2nd DCA
2014)
Guideline No. 4.A, Social Media Ethics Guidelines, New York State Bar
Association’s Commercial and Federal Litigation Section

A Florida Bar member who handles personal injury and wrongful death cases has asked
the committee regarding the ethical obligations on advising clients to “clean up” their social
media pages before litigation is filed to remove embarrassing information that the lawyer
believes is not material to the litigation matter. The inquirer asks the following 4 questions:
1) Pre-litigation, may a lawyer advise a client to remove posts, photos, videos,
and information from social media pages/accounts that are related directly to the
incident for which the lawyer is retained?
2) Pre-litigation, may a lawyer advise a client to remove posts, photos, videos,
and information from social media pages/accounts that are not related directly to
the incident for which the lawyer is retained?
3) Pre-litigation, may a lawyer advise a client to change social media
pages/accounts privacy settings to remove the pages/accounts from public view?

4) Pre-litigation, must a lawyer advise a client not to remove posts, photos,
videos and information whether or not directly related to the litigation if the
lawyer has advised the client to set privacy settings to not allow public access?
Rule 4-3.4(a) is applicable and states as follows:
A lawyer must not:
(a) unlawfully obstruct another party’s access to evidence or otherwise
unlawfully 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 provides further guidance:
The procedure of the adversary system contemplates that the evidence in a
case is to be marshalled competitively by the contending parties. 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.
Documents and other items of evidence are often essential to establish a
claim or defense. Subject to evidentiary privileges, the right of an opposing party,
including the government, to obtain evidence through discovery or subpoena is an
important procedural right. The exercise of that right can be frustrated if relevant
material is altered, concealed, or destroyed. Applicable law in many jurisdictions
makes it an offense to destroy material for the purpose of impairing its availability
in a pending proceeding or one whose commencement can be foreseen.
Falsifying evidence is also generally a criminal offense. Subdivision (a) applies
to evidentiary material generally, including computerized information.
Under these facts, the proper inquiry is whether information on a client’s social media
page is relevant to a “reasonably foreseeable proceeding,” rather than whether information is
“related directly” or “not related directly” to the client’s matter. Information that is not “related
directly” to the incident giving rise to the need for legal representation may still be relevant.
However, what is relevant requires a factual, case-by-case determination. In Florida, the second
District Court of Appeal has determined that normal discovery principles apply to social media,
and that information sought to be discovered from social media must be “(1) relevant to the
case’s subject matter, and (2) admissible in court or reasonably calculated to lead to evidence
that is admissible in court.” Root v. Balfour Beatty Construction, Inc.,132 So.3d 867, 869-70
(Fla. 2nd DCA 2014).
What constitutes an “unlawful” obstruction, alteration, destruction, or concealment of
evidence is a legal question, outside the scope of an ethics opinion. The committee is aware of
cases addressing the issue of discovery or spoliation relating to social media, but in these cases,
the issue arose in the course of discovery after litigation commenced. See, Allied Concrete Co. v.
Lester, 736 S.E.2d 699 (Va. 2013) (Sanctions of $542,000 imposed against lawyer and $180,000
against the client for spoliation when client, at lawyer’s direction, deleted photographs from

client’s social media page, the client deleted the accounts, and the lawyer signed discovery
requests that the client did not have the accounts); Gatto v. United Airlines, 2013 WL 1285285,
Case No. 10-cv-1090-ES-SCM (U.S. Dist. Ct. NJ March 25, 2013) (Adverse inference
instruction, but no monetary sanctions, against plaintiff who deactivated his social media
accounts, which then became unavailable, after the defendants requested access); Romano v.
Steelcase, Inc. 907 N.Y.S.2d 650 (NY 2010) (Court granted request for access to plaintiff’s
MySpace and Facebook pages, including private and deleted pages, when plaintiff’s physical
condition was at issue and information on the pages is inconsistent with her purported injuries
based on information about plaintiff’s activities available on the public pages of her MySpace
and Facebook pages). In the disciplinary context, at least one lawyer has been suspended for 5
years for advising a client to clean up the client’s Facebook page, causing the removal of
photographs and other material after a request for production had been made. In the Matter of
Matthew B. Murray, 2013 WL 5630414, VSB Docket Nos. 11-070-088405 and 11-070-088422
(Virginia State Bar Disciplinary Board July 17, 2013).
The New York County Lawyers Association has issued NYCLA Ethics Opinion 745
(2013) addressing the issue. The opinion concludes that lawyers may advise their clients to use
the highest level of privacy settings on their social media pages and may advise clients to remove
information from social media pages unless the lawyer has a duty to preserve information under
law and there is no violation of law relating to spoliation of evidence. Other states have since
come to similar conclusions. See, e.g., North Carolina Formal Ethics Opinion 5 (attorney must
advise client about information on social media if information is relevant and material to the
client’s representation and attorney may advise client to remove information on social media if
not spoliation or otherwise illegal); Pennsylvania Bar Association Opinion 2014-300 (attorney
may advise client to delete information from client’s social media provided that this does not
constitute spoliation or is otherwise illegal, but must take appropriate action to preserve the
information); and Philadelphia Bar Association Professional Guidance Committee Opinion
2014-5 (attorney may advise a client to change the privacy settings on the client’s social media
page but may not instruct client to destroy any relevant content on the page). Subsequent to the
publication of the opinion, the New York State Bar Association’s Commercial and Federal
Litigation Section adopted Social Media Ethics Guidelines. Guideline No. 4.A, citing to the
opinion, states as follows:
A lawyer may advise a client as to what content may be maintained or
made private on her social media account, as well as to what content may be
“taken down” or removed, whether posted by the client or someone else, as long
as there is no violation of common law or any statute, rule, or regulation relating
to the preservation of information. Unless an appropriate record of the social
media information or data is preserved, a party or nonparty may not delete
information from a social media profile that is subject to a duty to preserve.
[Footnote omitted.]
The committee agrees with the NYCLA that a lawyer may advise a client to use the
highest level of privacy setting on the client’s social media pages.
The committee also agrees that a lawyer may advise the client pre-litigation to remove
information from a social media page, regardless of its relevance to a reasonably foreseeable

proceeding, as long as the removal does not violate any substantive law regarding preservation
and/or spoliation of evidence. The committee is of the opinion that if the inquirer does so, the
social media information or data must be preserved if the information or data is known by the
inquirer or reasonably should be known by the inquirer to be relevant to the reasonably
foreseeable proceeding.
The committee is of the opinion that the general obligation of competence may require
the inquirer to advise the client regarding removal of relevant information from the client’s social
media pages, including whether removal would violate any legal duties regarding preservation of
evidence, regardless of the privacy settings. If a client specifically asks the inquirer regarding
removal of information, the inquirer’s advice must comply with Rule 4-3.4(a). What information
on a social media page is relevant to reasonably foreseeable litigation is a factual question that
must be determined on a case-by-case basis.
In summary, the inquirer may advise that a client change privacy settings on the client’s
social media pages so that they are not publicly accessible. Provided that there is no violation of
the rules or substantive law pertaining to the preservation and/or spoliation of evidence, the
inquirer also may advise that a client remove information relevant to the foreseeable proceeding
from social media pages as long as the social media information or data is preserved.