On January 23, 2015, the Professional Ethics Committee of the Florida Bar issued an advisory opinion holding that before litigation commences, and absent any other preservation obligation, an attorney may advise a client to: (1) remove information from social media pages and (2) change privacy settings from public to private, as long as the client retains a record of any deleted information or data. In so holding, the Florida ethics committee joined panels from New York, Pennsylvania, and North Carolina that have issued similar guidance.
By way of background, an attorney sought guidance about the ethical implications of advising a client to “clean up” his social media pages before litigation commences to delete “embarrassing” information the attorney deemed immaterial and not directly related to impending litigation. Because the client retained counsel, the ethics committee assumed litigation was “reasonably foreseeable” and, therefore, determined the appropriate inquiry was whether the social media was “relevant,” rather than “related directly” to the underlying litigation. The ethics committee held that relevancy is determined on a factual, case-by-case basis.