By Mark A. Berman
Social networking websites enable easy sharing of information and concomitantly offer the user different levels of privacy. Certain sites allow users to restrict who may see certain types of content. Other websites can limit information to defined groups of viewers. On Facebook, a user may, for example, make posts or other information solely available to “friends” who have been specifically granted access to such account.
A client at some point may wish to change her privacy settings to no longer broadly share her social media postings in order to prevent them from being accessed by, perhaps, the other side in a litigation or her counsel; a competitor; a former employer or employee; or even the media. Such social media postings might include written admissions, incriminating photographs or videos, a post-accident description of an incident and who witnessed it, identification of friends of the account holder, a person’s location at a critical time period or even evidence of unfair competition.
Is there any ethical prohibition on counsel advising the client to change her privacy settings to be more restrictive, that is, to limit or deny access to certain social media account information?
New York’s Rules of Professional Conduct
Rule 1.1 of the New York Rules of Professional Conduct (NYRPC) provides:
A lawyer should provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
Rule 1.1 of American Bar Association Model Rules of Professional Conduct (ABA Model Rules) differs from the NYRPC as it uses the verb “shall” as opposed to “should” and Comment 8 to ABA Model Rule 1.1 provides that “[t]o maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology … .” The Committee on Standards of Attorney Conduct of the New York State Bar Association (NYSBA) recently recommended that the NYSBA House of Delegates adopt a similar change to the comments to NYRPC Rule 1.1.
NYRPC Rule 3.4 reflects a different concern. As stated:
A lawyer shall not: (a)(1) suppress any evidence that the lawyer or the client has a legal obligation to reveal or produce; *** (3) conceal or knowingly fail to disclose that which the lawyer is required by law to reveal;
ABA Model Rule 3.4, however, is different from NYRPC Rule 3.4(a)(1) in that it provides that:
A lawyer shall not: (a) unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act;
Does an attorney’s technological competence, which enables him to provide legal advice to a client to change her privacy settings, implicate the “suppression,” “concealment” or “obstruction” of evidence that either client or counsel has a duty to “reveal”?
Relevant Ethical Opinions and Guidelines
Ethics opinions and guidelines have been consistent in opining that counsel may advise a client on “taking down” a social media post and on restricting access to a social media post as long as preservation obligations have been met. In fact, the Commercial and Federal Litigation Section of the New York State Bar Association in its recent March 2014 “Social Media Guidelines,” opined that 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.” The Guidelines, however, also stated that “[u]nless 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.”
Similarly, New York County Lawyers’ Association (NYCLA) Ethics Opinion 745 notes that:
an attorney’s obligation to represent clients competently (RPC 1.1) could, in some circumstances, give rise to an obligation to advise clients, within legal and ethical requirements, concerning what steps to take to mitigate any adverse effects on the clients’ position emanating from the clients’ use of social media. Thus, an attorney may properly review a client’s social media pages, and advise the client that certain materials posted on a social media page may be used against the client for impeachment or similar purposes.
For example, as noted in Ethics Opinion 745, a lawyer may “discuss the significance and implications of social media posts (including their content and advisability); advise the client how social media posts may be received and/or presented by the client’s legal adversaries and advise the client to consider the posts in that light; discuss the possibility that the legal adversary may obtain access to ‘private’ social media pages through court orders or compulsory process; review how the factual context of the posts may affect their perception; review the posts that may be published and those that have already been published; and discuss possible lines of cross-examination.”
NYCLA Opinion 745 further states:
provided that such removal does not violate the substantive law regarding destruction or spoliation of evidence, there is no ethical bar to “taking down” such material from social media publications, or prohibiting a client’s attorney from advising the client to do so, particularly inasmuch as the substance of the posting is generally preserved in cyberspace or on the user’s computer.
In accord with the Social Media Guidelines and NYCLA Opinion 745, Philadelphia Bar Association Professional Guidance Committee Opinion 2014-5 stated that a lawyer may advise a client to change the privacy settings on her social media page, but may not instruct or permit a client to delete or destroy any “relevant” content “so that it no longer exists.” Opinion 2014-5 noted that, while changing a client’s profile to private restricts access to the content, it does not prevent the opposing party from being able to obtain such information through discovery or by a subpoena.
The Ethics Committee of the Pennsylvania Bar Association in Formal Opinion 2014-300 recently indicated that it agreed with the Social Media Guidelines and Opinion 2014-5, which are consistent with the prohibitions, under ABA Model Rule 3.4, against “unlawfully alter[ing], destroy[ing] or conceal[ing] a document or other material having potential evidentiary value.” Opinion 2014-300 further opined that a “lawyer may, however, instruct a client to delete information that may be damaging from the client’s page, provided the conduct does not constitute spoliation or is otherwise illegal, but must take appropriate action to preserve the information in the event it is discoverable or becomes relevant to the client’s matter.”
Some Contrary Thought: The Law360 Article
According to an article posted on Nov. 24, 2014 by Law360, some experts have raised ethical concerns that lawyers advising clients to make their privacy settings more restrictive could “leave room” for an attorney to be “accused of obstructing access to evidence” under applicable ethical rules. These ethical concerns arise from the question whether such advice, under ABA Model Rule 3.4, which states have adopted in various forms, violates the prohibition that a lawyer may not “obstruct” another party’s access to evidence or alter, destroy or conceal any material having potential evidentiary value. The Law360 article framed the question as “whether moving material behind a privacy wall could be considered improper concealment” and “[e]veryone agrees that as long as it’s not spoliation then it’s okay, but the $64,000 question remains unanswered,” which is “[i]f I tell [a client] to move something behind a privacy wall, is that concealing it? The answer is that we just don’t know.”
The Law360 article further noted that, although there is a general “admonition that attorneys take appropriate steps to preserve potentially relevant material,” these experts believe that there is “potential for confusion over what information may or may not be germane to a particular piece of litigation.” As it relates to advice concerning privacy settings, “[t]hat’s a tricky one, and I don’t think the answer is going to be clear in every circumstance,” said Suffolk University law professor Andrew Perlman. “To the extent the lawyers have to make a judgment call,” Professor Perlman noted that “it’s best to err on the side of not advising clients to destroy or remove material on social media.” The Law360 article noted that one commentator said that “[w]hen people put it up on their public Facebook page in the first place, they didn’t see a need to protect it, and the reason an attorney is telling them to put it behind a privacy wall is because it might implicate their case.”
The Law360 article raises interesting questions as to whether there are any limitations on what counsel may advise concerning restricting access to a client’s social media postings. As an initial matter, ethical opinions do not impose a duty to volunteer all relevant information that a lawyer has, but instead prohibits unethically concealing potential evidence that a lawyer has a duty to disclose.
The arguments made in the Law 360 article appear to question the propriety of advising a client concerning the typical admonition to place a confidential designation on a personal, private letter or advising a client to close the drapes on her windows? How is advising a client to change her privacy settings any different? Is advising a client to restrict her privacy settings any different than advising a client not to publicly “blab” about her case? There appears to be no legal distinction here and there is no clear prohibition under ethical rules to providing such advice as long as the relevant social media is properly preserved. Has an ethical rule been violated because a party must now litigate for months seeking to have produced to it a social media posting that was once “public,” but became “private” upon the advice of counsel? I would say no.
The Social Media Guidelines and ethical opinions do, however, raise the issue in what “form” such social media information needs to be preserved, and that all depends on whether a duty to preserve at the time existed. Is a paper “print out” of information sufficient or does the information need to be saved in a way that maintains all relevant metadata? No ethics opinions have opined on whether simply “printing out” an electronic post would be a violation of Rule 3.4. However, outside of any ethical paradigm and once a duty to preserve exists, courts have held, in the context of whether a document production was proper, that it is not permissible to cause electronically stored information (ESI) to be “degraded” or produced in a form less “usable” than in its “original” format. Courts have found, under certain circumstances, that ESI needs to be preserved for production in the format it was originally maintained by the client, which may be in native format.
Social media accounts are dynamic and continually change even after postings have been made. Thus, information may be posted on social media well after litigation is commenced. Is there anything wrong with a litigant, without an attorney’s counsel, to change her privacy settings to limit future exposure of irrelevant or embarrassing or even harmful statements, including those posted by others, as long as the content is not deleted or destroyed and properly preserved? No. Likewise, counseling a client to do the same should not be viewed as ethically improper.
Unfortunately, social media users do not always appreciate that what they view as private to them may be, in fact, quite “public.” The user may not have been fully informed when she chose her privacy settings, despite her intent to keep postings private, due to ignorance as to what “public” means. An attorney competent with such technology should be permitted to ethically counsel a client as to the meaning of various privacy restrictions on her social media postings.
There are non-litigation reasons to cause an account or social media content to become “non-public.” For example, an individual may wish to change her privacy settings to shield information from potential employers. In addition, a student being harassed may wish to change her settings to prevent harassment. A lawyer should not be ethically prohibited from providing such advice under these circumstances.
Rule 3.4 should not prohibit a lawyer from counseling a client to change her privacy settings in order to make her social media postings more restrictive, and such advice should not be viewed as counseling “obstruction” or the “concealment” of evidence. To the contrary, as long as the social media content is properly preserved, that advice may be prudent under the circumstances and the failure to provide such advice could be a disservice to the client.
Mark A. Berman is co-chair of the Social Media Committee of the Commercial and Federal Litigation Section of the New York State Bar Association as well as Vice-Chair of the Section, which published the Social Media Guidelines discussed above. This article grew out of recent discussions with his co-chair Ignatius A. Grande of Hughes, Hubbard and Reed, LLP; the Section’s Twitter Master, Scott L. Malouf, a lawyer who assists attorneys using social media, text and email evidence; and Ronald J. Hedges, a member of the Committee and a former U.S. Magistrate Judge.
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