In preparation for trial, a lawyer might advise a client to dress or act a certain way in order to improve his or her appearance in the court room. For instance, a lawyer might advise a client to appear in court wearing business attire as opposed to sweatpants; or maybe, tell a client to remove all non-traditional piercings. This sort of cleaning up is a legally permissible way to positively alter the appearance of the client. However, there does come a point when an attorney’s advisement to have a client appear representable could actually result a violation of the legal ethical rules that lawyers must follow and further result in disastrous consequences for the lawyer and the client.
Under the Model Rules of Professional Conduct (“Rule”), lawyers must always “govern candor toward the tribunal, fairness to opposing party and counsel, and misconduct.” This means that when representing their clients, lawyers have to disclose all evidence to the tribunal and opposing party—even if such evidence would be adverse to the client’s interests. But with the advent of social media technology, “cleaning up” would have a whole new meaning and big consequences for the client and the lawyer.
This is exactly what happened in a recent wrongful death action case. There, attorney Matthew Murray was representing a client named Isaiah Lester in a law suit against Allied Concrete for the death of Mr. Murray’s wife when one of Allied Concrete’s cement trucks tipped over on top of Lester’s car killing his wife. During the midst of the lawsuit, Allied’s attorneys sought to obtain screen shots and other types of information from Lester’s Facebook page. Upon this knowledge, Mr. Matthew instructed his paralegal to advise Lester to clean up his Facebook page. In response, Lester deleted 16 photos from his Facebook page, including one photo depicting Lester holding a beer can wearing a T-shirt that said, “I (heart) hot moms.” These photos were already recovered by the defense attorneys prior to the trial and the jurors were also told about these photos.
As a result of this misconduct, Mr. Murray received a five year suspension from the practice of law. In addition, the Court handling Mr. Lester’s case ordered as sanction that the pair pay $772,000 to the opposing party to cover the attorney fees. The Court also deducted $4.13 million from the total $10 million dollars that Lester was originally awarded for the wrongful death action.
This case serves as a startling reminder that social media evidence is as important as other electronic evidence. It is most likely that Mr. Murray would not have instructed his client to delete all of his e-mails or to wipe clean his hard drive, but for some reason Mr. Murray thought differently when it came to social media evidence. Either way, this case is important for lawyers in understanding how social media is becoming an integral part of the discovery process.
A special thanks to Melissa Cefalu a law clerk at Cullen and Dykman LLP, for help with this post.