A senior lawyer once said to me that “practicing law would be great, if it wasn’t for the clients.”
It’s a joke, of course. Lawyers couldn’t practice law without clients, and the clients pay the bills. So we definitely appreciate our clients.
But there’s no question that practicing law would be easier if we didn’t have to worry about the bad decisions our clients sometimes make.
Take social media, for example. In Part 1 of this series, I talked about lawyers using social media to do opposition research, i.e. to dig up dirt on the opposing party. Ethically, that’s generally ok as long as you limit your research to publicly available content and you don’t “friend” or communicate with the other party.
That sounds fun. But guess what? The lawyer on the other side is busy doing the same thing to your client. So, before you start scrolling through your adversary’s Facebook photos, you may need to advise your client about her own use of social media.
Here comes the hypothetical.
The continuing saga of Paula Payne v. Dawn Davis
As we know from last time, Dawn Davis left her sales job at Paula Payne Windows to work for competitor Real Cheap Windows. After getting sued for violating her non-compete, Dawn Davis hires litigator Maria Reynolds from the law firm Burr & Associates.
Reynolds, who is naturally suspicious after 20 years of litigation practice, Googles her own client and is appalled at what she finds. Right there on Dawn’s public Facebook page, Reynolds finds photos of Dawn downing margaritas at Matt’s El Rancho with the head of Real Cheap, two months before Dawn resigned from Paula Payne. Reynolds fires off an email to Dawn: “Dawn, delete that photo from Matt’s now, and clean up your Facebook page ASAP!”
Fortunately, Reynolds’ young associate, Peggy Schuyler, sees this email and politely suggests to Reynolds, “rather than deleting the photo, maybe we just tell Dawn to make her settings private so the other side can’t see it.”
Meanwhile . . .
Paula Payne’s lawyer, John Laurens, is discovering that not every problem can be settled by committee. He’s been so busy working on his firm’s dress code committee that he hasn’t had much time to focus on Paula Payne’s lawsuit. After having an associate slap together an Original Petition (that’s what we call the Complaint in Texas), Laurens neglects to tell his client anything about social media.
Laurens doesn’t even realize that the president of the company, Paula Payne herself, has launched a tweetstorm against Dawn Davis and Real Cheap. The latest salvo from Paula: “Real Cheap steals employees and customers from Paula Payne Windows. Sad!”
What advice should lawyers give clients about using social media during litigation?
I sense a possible ethical violation here. But what is it? Which of these things will get a lawyer in ethical hot water?
(A) Advising the client to change her social media settings to make potentially relevant evidence private.
(B) Suggesting in writing that the client be cautious about using social media during the lawsuit and avoid posting anything that could be used as evidence against the client.
(C) Telling the client to stop using social media entirely while the lawsuit is pending.
(D) Instructing the client to remove a potentially relevant photo from Facebook but to send a copy of the photo to the lawyer to hold.
(E) Directing the client to “clean up your social media accounts” without any guidance.
(F) Failing to give the client any advice about using social media while the lawsuit is pending.
(G) Telling the client to delete a potentially relevant photo from Facebook, without saving a copy.
Seven choices! This is worse than the Property law final I had to take in my first year of law school. (Prof. Gerald Torres was a pretty cool guy, but his exam was ridiculous.)
But unlike the Rule Against Perpetuities, this issue is fairly intuitive. Based on the consensus emerging from ethics opinions across the US, the answers above are listed in order from most to least advisable.
Answers (A) and (B) are not only ethical, but almost mandatory to meet the lawyer’s ethical duty of competence. Changing settings to private does not destroy or alter evidence, and telling a client to be cautious about what she posts is not telling the client to give false testimony. Plus, all lawyers these days should know enough about social media to give this basic advice.
I don’t see any ethical problem with Answer (C), telling the client to stop using social media entirely, but it seems like overkill. Social media has become an integral part of most people’s daily lives. Lawsuits can take years to resolve, and it would be unnecessarily onerous to tell a client she can’t use social media at all during that entire time.
Answer (D) is on the borderline. Remember that there is a legal duty to preserve relevant evidence. Whether that duty includes social media content may have been a novel issue back when MySpace was the next big thing, but it should be a no-brainer to everyone today. (Everybody loves to pick on MySpace.)
There are ethics opinions suggesting that a lawyer can advise a client to remove content from a social media account, provided that any evidence relevant to the lawsuit is preserved. So, for example, in a personal injury suit, you can remove that photo of the plaintiff wake-boarding the weekend after the accident, as long as you preserve a copy of the photo, which is likely to be requested in discovery.
But sometimes that won’t be enough to solve the problem. Suppose that the relevant evidence is not merely the photo itself, but the fact that the plaintiff posted the photo and commented on it. Or maybe there is a comment from a third party that is relevant. In those cases, preserving relevant evidence may require preserving the social media content itself. I suggest caution.
While (D) is debatable, it should be pretty obvious that Answers (E) through (G) can get you in deep doo-doo.
The only question here is whether I have (E) and (F) in the right order. Which is worse, giving a client bad advice to “clean up” her social media, or giving her no advice about social media at all? Remember that a lawyer has an ethical duty of competence, and claiming ignorance of social media is no excuse. See ABA Model Rule 1.1, Comment 8 (“To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology”). So giving no advice is only a little better than giving bad advice.
Finally, there is a technical legal term for Answer (G), telling the client to delete a potentially relevant photo from Facebook, without saving a copy: boneheaded.
Actually, the term is “spoliation,” which comes from the Latin word spoliare. Translated, it means “oh crap, Brutus, the judge is going to hammer us.” Deleting relevant evidence is intentional spoliation, which can lead to severe sanctions known, oddly, as “spoliation sanctions.”
And that’s a fate even worse than my first-year Property final.
*UPDATE: In its December 1, 2017 memo, the Social Media Subcommittee of the Texas Supreme Court Advisory Committee noted, but did make a recommendation, on several issues including:
“(B) May attorneys ethically advise their clients to delete or change content on the client’s ESM or websites?”
“(C) May attorneys ethically advise their clients not to comment on pending litigation or otherwise restrict the use of their ESM?”
“(D) May attorneys ethically advise their client to change their privacy settings, for example, from public to private, until litigation is concluded” (citing New York County Ethics Opinion 745)
Zach Wolfe (firstname.lastname@example.org) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC.
These are his opinions, not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.
This post is dedicated to John Lennon.
 See Florida Bar, Advisory Opinion 14-1 (2015); Pennsylvania Bar Association, Formal Opinion 2014-300 (2014); Philadelphia Bar Association, Opinion 2014-5 (2014); North Carolina Bar Association, Formal Ethics Opinion 5 (2014); New York County Lawyers Association, Formal Opinion 745 (2013). I could say more about these opinions, but I really can’t improve on Dallas lawyer John G. Browning’s 2015 article You Tweeted What?, which thoroughly discusses them.