The Florida Bar Professional Ethics Committee said in a recent advisory opinion that attorneys may advise clients to “clean up” their social media pages ahead of litigation—including changes to privacy settings and removing information.
The advice is ethical as long as it is in compliance with substantive laws or rules and the information is preserved in some way—such as unlawful obstructive, alteration, or concealment of evidence.
The opinion will become final unless commenting bar members seek review from the Board of Governors.
The inquirer asked the following questions of the committee. Prior to filing suit:
- May a lawyer advise a client to remove posts, photos, and information from social media pages/accounts that are related to (and not related to ) the incident for which lawyer is retained?
- May a lawyer advise a client to change social media [profiles] privacy settings to remove pages/accounts from public view?
- Must a lawyer advise a client not to remove posts, photos, videos, and information whether or not directly related to the litigation if the lawyer has advised the client to set privacy settings to not allow public access?
The ethics committee focused on Florida professional conduct rule 4-3.4(a) Fairness to Opposing Party and Counsel and decided the question to ask is whether the information is relevant to a “reasonably foreseeable proceeding.”
A recent decision in Root v. Balfour Construction, Inc. ruled discovery principles apply to social media information but it must be relevant to the case and admissible in court or lead to evidence that is admissible in court. 132 S.O.3d 867, 869-870 (Fla. 2nd DCA 2014).
The New York County Lawyers Association also addressed the issue of pre-litigation social media scrubbing. The opinion is followed by other states including North Carolina and Pennsylvania, which conclude the practice is admissible as long as the removal does not constitute spoliation and to advise client if the information is relevant to the suit.
Determining what information is relevant is a factual question and is determined on a case-by-case basis, the opinion stated.