Question

I have recently read several news articles about lawyers using social media to investigate an adverse party. What can a lawyer tell his or her client to do about social media postings?

Answer

Social media postings have become a significant source of information for opposing counsel in many types of litigation. Because of this, lawyers must consider how to advise clients about the use of social media. Many people today believe that social media postings (on sites such as Facebook and YouTube) are private or confidential and cannot be used against the individual. This is not true. The information on these postings is public information and may be used in legal proceedings. Some lawyers have even tried to get access to the private pages of adverse parties to look for damaging information that can be used to impeach a party making a claim.

It is a part of the lawyer’s duty of competence to advise clients about the potential consequences of posting information on a social media public page. Wisconsin Supreme Court Rule 20:1.1 provides: “Competence. A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”

A recent New York City Law Association ethics opinion (no. 745, July 2, 2013) addressed this issue and concluded that attorneys may “advise clients as to (1) what they should/should not post on social media, (2) what existing postings they may or may not remove, and (3) the particular implications of social media posts….” The opinion went on to address concerns and principles that apply when providing such advice:

“Preliminarily, we note 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. In advising a client, attorneys should be mindful of their ethical responsibilities under RPC 3.4. That rule provides that a lawyer shall not ‘(a)(1) suppress any evidence that the lawyer or the client has a legal obligation to reveal or produce… [nor] (3) conceal or knowingly fail to disclose that which the lawyer is required by law to reveal.’”

The committee went on to state what types of things a lawyer may discuss with a client who is planning to publish something on a social media page:

“We further conclude that it is permissible for an attorney to review what a client plans to publish on a social media page in advance of publication, to guide the client appropriately, including formulating a corporate policy on social media usage. Again, the above ethical rules and principles apply: An attorney may not direct or facilitate the client’s publishing of false or misleading information that may be relevant to a claim; an attorney may not participate in the creation or preservation of evidence when the lawyer knows or it is obvious that the evidence is false. RPC 3.4(a)(4). However, a lawyer may counsel the witness to publish truthful information favorable to the lawyer’s client; discuss the significance and implications of social media posts (including their content and availability); 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” (footnote omitted).

Conclusion

As you can see from the above, lawyers have flexibility in giving advice to their clients about the use of social media and in fact may be required to give such advice depending on the nature of the representation. Caution must be exercised that the lawyer does not cause the client to remove information that, because of the commencement of litigation, must be preserved.