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Bar ethics opinion offers advice on social media

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Bar ethics opinion offers advice on social media

Senior Editor

Lawyers can advise clients to remove information or increase privacy settings on their social media accounts, as long as the information is available if it becomes the subject of litigation, according to the Professional Ethics Committee.

The committee on January 22 approved Proposed Advisory Opinion 14-1 to answer an attorney who posed four questions about advising a client about removing or increasing the privacy settings of information posted on social media. (See Notice, here. )

On a second issue, the committee modified and approved a staff opinion advising a lawyer that charging a reverse contingency fee for defending a mortgage foreclosure action might be allowable, but that the lawyer could not secure that fee by placing a mortgage on the affected property.

The social media issue came from a lawyer who asked if during pre-litigation he could:

* Advise the client to remove photos, videos, and information related to the matter for which the lawyer was retained;

* Advise the client to remove information not directly related to the matter for which the attorney was retained;

* Advise the client to change the privacy settings on social media accounts, which might remove those accounts or parts of them from public view;

* Advise the client not to remove information from the account, whether or not it relates to the matter for which the attorney was retained, if the attorney has advised the client to increase the privacy setting on the account so that information is no longer publicly accessible.

Committee member Brian Coughlin, who chaired the subcommittee that drafted the proposed opinion, said Bar Rule 4-3.4(a) addresses the issue. It mandates that lawyers may not impede another party’s access to evidence or alter, destroy, or conceal evidence relating to a pending case or occurrences that the lawyer should reasonably know might be a future case.

The proposed opinion notes that what constitutes “unlawful” obstruction, destruction, or concealment of evidence is a legal question beyond the scope of an ethics opinion. But it also noted that the New York, North Carolina, and Pennsylvania bars have addressed information posted on social media, as well as some local bars.

Drawing on those, the proposed opinion said, “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 lawyer’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.”

The proposed opinion concluded that, “a lawyer 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, a lawyer also may advise that a client remove information relevant to the foreseeable proceeding from social media pages as long as an appropriate record of the social media information or data is preserved.”

Coughlin said the proposed opinion reflects the committee consensus that,“Yes, opposing counsel has the right to ask for certain information, but that information does not have to be left posted in billboard fashion for the world to see when it is pre-litigation.”

But he added that discretion is subject to the laws of spoliation as well as Rule 3-3.4(a).

“It allows the lawyer to make the decision independently under the guidelines we have been given,” Coughlin said. “The independence and discretion of the lawyer win out over strict guidelines.”

The committee will consider any comments when it meets in June at the Bar’s Annual Convention. If there are no comments, the opinion will become final. If there are comments, the committee can consider changes. If it approves the opinion unchanged, those who filed objections can appeal to the Bar Board of Governors.

On the reverse contingency fee issue, the inquiring attorney asked that, as long as the client was fully informed and agreed in writing, if the attorney and client could enter into a reverse contingency fee in defending the client’s foreclosure action with the fee calculated on the reduction in indebtedness or settlement in a civil action. The second question asked if such a fee could be secured by a mortgage, which would be held in escrow (unrecorded) in case the client did not timely pay the reverse contingency fee, after which the mortgage would be recorded.

The committee agreed with the staff opinion that the reverse contingency fee technically would be allowed, but said the opinion was too detailed in its discussion of potential limitations and instances where such a fee might be excessive. It agreed without reservation with the staff opinion that securing the fee with a mortgage violates Bar Rule 4-1.8(i), which prohibits an attorney from acquiring a proprietary interest in the client’s cause of action or subject of litigation.

“Rule 4-1.8(i) has its basis in the common law of champerty and excepts only existing common law retaining liens and charging liens to secure an attorney’s fees, not a mortgage such as that proposed by the inquirer.. . , ” the opinion said. “The proposed agreement violates this rule regardless of whether the mortgage is recorded.”

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