A recent Philadelphia Bar Association ethics opinion detailing how lawyers may instruct their clients on the use of social media provides greater clarity to lawyers caught in the middle of a constantly “evolving” digital landscape, some attorneys said.
The opinion, put out by the bar association’s professional guidance committee, notes that the ever-changing nature of social media has made it necessary to provide a frame of reference for attorneys on what their clients should and should not do with their social media pages while in the midst of a civil or criminal matter.
“I think this is an area where there is a lot of uncertainty and we hope that we’re providing guidance so that lawyers can better understand their ethical obligations,” committee co-chair Hope A. Comisky said. “The intersection between law and tech is evolving at a very fast pace, and lawyers need guidance on how to deal with it.”
Using Facebook as an example, the committee said in its opinion, “A lawyer may advise a client to change the privacy settings on the client’s Facebook page, but may not instruct or knowingly allow a client to delete/destroy a relevant photo, link, text or other content.”
Despite the fact that information that could become relevant at some point during litigation can be made private, it is not removed from the reach of the other side in a case.
“Though an opposing party may not be able to gain unrestricted access to a client’s information after the privacy settings are changed, the opposing party may still obtain the information through discovery or subpoena,” according to the committee.
The opinion listed a case in the Jefferson County Court of Common Pleas, McMillen v. Hummingbird Speedway, as an example of using social media as evidence. In that case, the court compelled information from a litigant’s Facebook page after the defendant in the case claimed that the plaintiff exaggerated the extent of his injuries.
Furthermore, the committee noted that potentially damaging information to the client that is not relevant to litigation can be removed from a social media page.
“A lawyer may not instruct a client to either alter, destroy, or conceal any relevant information regardless [of] whether that information is in paper or digital form,” the committee said, stipulating that, “A lawyer may, however, instruct a client to delete information that may be damaging from the client’s page.”
The caveat of that stipulation is that the deleted information must be preserved in some way in the event the information becomes relevant to the case.
If the information is deemed to be relevant, “a lawyer must produce any social media content, such as photos and links, posted by the client, including posts that may be unfavorable to the client,” the committee said.
If the attorney believes that his or her client is withholding photos or links, the committee advised that the lawyer must make a “reasonable effort” to obtain the information.
Feldman Shepherd Wohlgelernter Tanner Weinstock & Dodig co-founder Ezra Wohlgelernter lectures on the topic of social media usage.
In the context of a personal injury case, Wohlgelernter said, “The typical format is the defendant wants Facebook access [to] the plaintiff, and we argue about whether it’s relevant to discovery.” This issue the opinion addresses, he added, “is far more insidious because I think it really takes it to the point of actual deception.”
The best approach, according to Wohlgelernter, is to advise a client not to tamper with his or her social media pages at all.
“We never tell a client to sanitize their social media sites,” Wohlgelernter said, adding that he will sometimes instruct a client not to make any additional posts.
In terms of protecting clients from damaging information, Wohlgelernter said courtroom action, not deleting Facebook posts, is the remedy.
“When I protect my clients from damaging information I do it in court with motions” claiming that the information is either prejudicial or irrelevant, Wohlgelernter said. “Do the work and let the chips fall where they may.”
Family law attorney Hillary Moonay said the opinion is consistent with ethics rules for lawyers and that its usefulness lies in providing insight to attorneys who may not be literate in social media.
Moonay added that websites like Facebook play a prominent role in family law cases especially and, therefore, knowing the ins and outs of the site’s privacy settings and the ethical implications thereof is crucial.
“A client wanted to relocate to Arizona, I immediately after I consulted with her went to her husband’s Facebook page. It said something like ‘my ex-wife told me she’s moving to Arizona the kids want to go.'”
Moonay said a post like that could be used during cross-examination of the husband if he claimed that he did not know of his wife’s plans to move or their children’s willingness to accompany her. But even if a client limits the visibility of a Facebook page to his or her friends, he or she is still not necessarily invisible to an opposing party, Moonay said, because there is no telling who a client’s friends are friends with.
However, Moonay stressed that limiting outside access to a Facebook profile can reduce the chances of an opposing party from “fishing” for evidence based on what is visible. “If you don’t put stuff out there that leads to other evidence being available, you’re protecting yourself.”
According to criminal defense attorney Hope Lefeber, the opinion illustrated “the loss of privacy in the digital age.”
“Whereas prior to the advent of social media, we would express our thoughts with a phone call or in-person conversation, we now text, tweet, post on Facebook, etc.,” Lefeber said in an email forwarded to The Legal.
As a result, she said, private statements and conversations are now digitally preserved.
“Our digital footprint outsizes our physical footprint by geometric proportions. These new guidelines ensure that all such personal expressions must be preserved forever,” Lefeber said. “I wonder whether we now must immediately record all changes of our feelings and opinions immediately on all social media sites in order to set the record straight should some litigation arise, for any reason, in years to come.”
The Pennsylvania Bar Association has no similar advisory opinion on the use of social media, according to PBA spokeswoman Marcy C. Mallory.
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