What are attorneys’ ethical obligations to ensure clients preserve social media posts relevant to a lawsuit? A recent ethics opinion from the Philadelphia Bar Association suggests that lawyers may advise a client to make social media posts private, but may not permit the client to delete or destroy the post and must obtain copies of the information to comply with production requests.
In Opinion 2014-5, the Philadelphia Bar Association Professional Guidance Committee addresses posts to Facebook and other social media damaging to a client’s case–such as incriminating photos or links to objectionable content. The opinion advises that attorneys may instruct clients to make posts private, but that opposing parties may still obtain copies of the information via subpoena or discovery request. To those ends, attorneys must ensure preservation of relevant social media posts and must obtain copies of the posts if requested in discovery. The obligation to preserve social media posts stems from an attorney’s duty of fairness found in rules based on Model Rule of Professional Conduct 3.4(a) which prohibits lawyers from “unlawfully obstruct[ing] another party’ s access to evidence or unlawfully alter[ing], destroy[ing] or conceal[ing] a document or other material having potential evidentiary value [or] counsel[ing] or assist[ing] another person to do any such act.” Moreover, under Rule 3.3(b), which obligates a lawyer to be candid with courts, attorneys faced with a client’s destruction of evidence must take remedial measures to counteract the destruction of evidence. Those measures may obligate an attorney to alert the court of the destruction. Additionally, the Philadelphia Bar opinion also suggests that attorneys must take reasonable efforts to obtain copies of relevant social media content that the lawyer reasonably believes the client failed to produce. However, lawyers are not obligated to obtain the information from third parties if the information was never in the possession or control of the client or attorney.
Although the opinion is based on Pennsylvania ethical rules, it provides guidance for lawyers in all states. For additional information about ethical guidelines relating to social media visit this page maintained by the State Bar of California or review the New York State Bar Association’s Social Media Guidelines.