We’ve been watching the prevalence and influence of social media in the practice of law. Research shows the majority of lawyers are using social media both for networking and case investigation. The photos and posts on Facebook and other sites are rife with evidence that may be relevant in prosecuting or defending litigation, especially in family law and personal injury cases. What should a professional lawyer do to minimize the deleterious effects of social media posts to a client’s case?
There is no doubt that a lawyer should not instruct a client to “clean up” a Facebook page by removing potentially incriminating photos that are the subject of a discovery request. Ask the Virginia lawyer now defending a disciplinary case, who has resigned from his law firm and has paid $544,000 of legal fees to opposing counsel while his client won an $8.5 million award. This was pretty egregious. Really it was no different than asking a client to destroy hard copies of incriminating photos the client brought into the office in an envelope.
But what about the situation where the Facebook page was not subject to a discovery request? Many lawyers have shared that they uniformly advise their clients to take down all photos and posts on their Facebook pages the minute they are consulted—before a law suit is filed if they represent a plaintiff. Is this considered spoliation of evidence? Is it ethical? Apparently this is a gray area that ethics opinions have not yet addressed.
However, a lawyer needs to keep in mind that she has an obligation (set out in Model Rule of Professional Conduct 3.3, “Candor Toward the Tribunal”) to safeguard the integrity of the judicial process—to make sure decisions are not rendered on false evidence. Under Rule 3.3, a lawyer may not offer evidence she knows is false. If she fails to look at any clients’ Facebook pages and uniformly advises the client to take down any photos that may harm their case is the lawyer acting professionally?
Is it important to know that Facebook may be subpoenaed and information about the exact date and time photos were posted and deleted can be confirmed? Does this matter to an attorney’s obligation? Let us know your thoughts.