The proliferation of social media over the past decade has drastically changed how people communicate. Without much thought, people publicly post detailed personal information and photographs documenting their whereabouts and moment-to-moment activities. In the litigation context, the increase in use of social media has created enormous amounts of discovery material. Most attorneys are well aware that the personal items and pictures posted on people’s social pages are ripe areas to learn about an opposing party, opposing counsel, potential witnesses, jurors and judges. Law enforcement agencies too — like the NYPD, which created a social media unit in 2011 — are mining social media for information concerning past and prospective criminal activity. Most laws and rules governing how attorneys may advise their clients concerning the handling of their personal information were developed in the pre-Facebook age. But, the differences between social media and other forms of discoverable material have altered the legality of attorneys’ actions both substantively and ethically in ways that many attorneys would not expect and in ways that conflict with their experience and instincts. One problematic – and largely unanswered – question is what advice an attorney can legally and ethically give to a client who has posted potentially incriminating or discoverable material on a social media website.
Take the case of a client who retains an attorney to defend him in an investigation into the possession of an unlicensed firearm. The client professes his innocence but in response to a question about whether he has ever actually possessed a weapon, mentions a picture posted on his Facebook page in which he is holding a friend’s semiautomatic rifle. It is possible that prosecutors already have visited the client’s page, downloaded the picture and intend to make it the first exhibit in their presentation to the Grand Jury. But there also is a chance that they have not yet seen the picture. What should the attorney do?
(Photo credit: Sean MacEntee)
The immediate reaction of most attorneys (and probably their ethical obligation) would be to find an appropriate way to secure the evidence so that it does not fall into the hands of the prosecutor. Most attorneys instinctually seek to control the potential evidence. In the past, when a client may simply have possessed a problematic photograph – not posted it in a public forum – the attorney could have taken possession of the photograph and objected to its disclosure in response to a subpoena. The attorney certainly should have advised the client not to show the picture to anyone else. In the case of a damaging photograph posted to a social media website, many attorneys instinctively would instruct their clients to remove the photograph. While in the past, the instinctive response would seem to be the best advice for clients and attorneys alike, now it is not so clear.
According to an ethics opinion issued last summer by the New York County Lawyer’s Association, attorneys are permitted to review the information a client posts on his or her social media page and advise the client, at least in civil litigation, as to the impact the posts will have on the client’s case. The opinion recognized that an attorney’s duty to competently represent a client “could, in some circumstance, 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.” The opinion cautions, however, that in advising a client about the impact a post may have in terms of impeachment material or otherwise, an attorney should be mindful of substantive law, noting that substantive law may impose a duty to preserve potential evidence in situations where litigation is anticipated.
This caution may have particular significance in criminal cases where the government is often concerned about interference with its investigations. Law enforcement agents and prosecutors have been known to threaten both clients and attorneys with obstruction charges for altering or removing the substance of social media pages. Indeed, a federal statute prohibits the alteration of physical evidence with the intent to impede, obstruct or influence a federal investigation. Arguably, taking down a social media page can constitute altering evidence. Although there is a general understanding that it is not actually possible to remove information from the Internet, in Gatto v. United Air Lines, Inc., a federal magistrate judge sanctioned a personal injury plaintiff for deactivating his Facebook account (the content of which had been requested in discovery) while litigation was pending. Facebook automatically deleted the account 14 days later and the contents of the account no longer existed and could not be retrieved. Whether threats of criminal obstruction charges are credible is difficult to ascertain since it remains to be seen what courts will determine actually constitutes obstruction of justice in the social media context.
Similarly, while few courts have addressed “spoliation,” the civil counterpart to obstruction of justice, in this context, last year in a Virginia wrongful death and personal injury case, spoliation of social media evidence resulted in dire consequences for an attorney. In Allied Concrete Co. v. Lester, an attorney whose client deleted his account after the attorney advised him to “clean up” his Facebook page faced both monetary sanctions and an apparent ethics investigation even though the adversary eventually obtained copies of almost all the deleted evidence. In that case, because the attorney participated in other instances of questionable discovery practices, it is not clear whether the “clean up” instruction alone would have led to such severe consequences. However, opposing counsel’s ability still to obtain the evidence did appear to be a factor in the court’s decision as to the severity of the sanctions, which it appears may have been greater had the evidence not been able to be retrieved. Therefore, to the extent an attorney believes his or her ethical obligation requires advising the client to take steps to mitigate the effects a post has on the client’s litigation, which could include “altering” the post in some form, it certainly would be prudent for the attorney to preserve copies of the post in its original form.
As in most developing areas of the law, the lesson in the area of social media and discovery is for attorneys to proceed with caution when advising their clients. The old rules of conduct do not necessarily apply to our new social media reality.