It is estimated that Americans spend 20 percent of their free time on social media. Here at Hackard Law, we wouldn't say our clients are necessarily any different than the rest of the country. In any litigation matter, it is nearly 100 percent predictable that adverse parties will work to access information about our clients. Both statistics lead to the conclusion that an attorney should advise his or her clients about the perils of social media once litigation is either contemplated or commenced.
A recent New York ethics opinion highlights the view that attorneys may need to advise clients regarding what is appropriate or inappropriate to post on social media. The opinion also concluded that it is not unethical to provide such advice. A search of recent cases readily supports the occasional need for such advice. Pictures of partying, alcohol abuse, embarrassing pictures and strenuous physical exertions for the physically injured are hardly building blocks for a strong case. Excuses ("It was my one night out" - "I just needed to let off some steam" - "That picture was taken without my permission") are not terribly helpful. It is helpful to understand that what is posted on Facebook is for the most part posted to the world. Discretion should be advised.
A leading ethics lawyer argues that standards of professional responsibility may now demand that a lawyer "inquire whether there is relevant evidence on social media sites, regardless of whether that evidence is public or private," that could be relevant to the case. This is good advice. We know that social media can be misleading. The next step is to expect what's already underway. Defense lawyers and their investigators will access social media and will utilize whatever they find that is helpful to them. This is not unethical; it is simply part of the adversary system.
There are a number of other issues that the evidentiary use of social media presents. Among the issues is whether the "removal" of information from a social media site constitutes the spoliation of evidence. For the most part, this issue can be addressed by the fact that "removal" is really a move of the information from public to private. Such information can usually be tracked down electronically even after "removal."
We now make it a habit to discuss social media with our clients. This is not always a light task. Ethics rules are continually being explained and applied to different circumstances, with guidance gradually being supplied by a number of state and local bar associations. There are some non-negotiable rules, among them: It is wrong for a lawyer to advise his or her client to alter or destroy any relevant evidence. This might seem obvious, but with Facebook pages and media sites that are updated frequently, the application of this non-negotiable rule can be problematic. In the meantime seeking counsel's advice on these changing issues is prudent.