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.
With those parameters in place, the ethics committee then reviewed the opinions of other panels that recently considered this issue, all of which reached similar conclusions, with some nuances:
- The New York County Lawyers Association concluded in a 2013 opinion that attorneys may advise clients to use privacy settings and to remove certain information from social media unless there is a preservation duty and without any violation of law or spoliation of evidence.
- The Pennsylvania Bar Association issued an opinion in 2014 that similarly allows attorneys to advise clients to delete information from social media – as long as the deletion does not constitute spoliation and a record of the deleted information is preserved.
- The North Carolina State Bar concluded in 2014 that attorneys may advise clients to remove information from social media as long as it does not constitute spoliation or is otherwise illegal.
- The Philadelphia Bar Association Professional Guidance Committee concluded in a 2014 opinion that attorneys may advise clients to change their privacy settings, but may not advise them to delete any social media.
The ethics committee then considered the New York State Bar Association’s Social Media Ethics Guidelines, which allow attorneys to advise clients about the content of their social media accounts, including what information may be “‘taken down,’” but make clear that attorneys may not advise clients to delete the information unless a record is retained and there is no attendant duty to preserve. The Florida ethics committee agreed with the New York guidelines for an attorney’s advice to a client pre-litigation, and also agreed that an attorney may advise a client to use privacy settings on their social media accounts.
Notably, the Florida ethics committee opined that “the general obligation of competence” may even require attorneys to advise clients about removing relevant information from their social media accounts, including whether the removal would violate preservation obligations, regardless of privacy settings. Overall, attorneys must be not only be mindful of applicable ethics committee opinions, but also recognize that this area of the law is rapidly evolving and remember their obligation to remain current and adhere to the Rules of Professional Competence.