Board approves ethics opinion dealing with social media advice.
The approval came over concerns by some members that if lawyers advise clients to remove information, the lawyers could be liable because it may be very difficult to adequately preserve all related online information if it is or becomes the subject of a legal action.
The Professional Ethics Committee drafted Proposed Advisory Opinion 14-1 in response to an attorney who asked about advising a client about changing the privacy setting on social media accounts and removing information if that information might be the subject of litigation.
Citing an ABA opinion and actions by other states, the committee concluded: "[T]he inquirer may advise that a client change privacy settings on the client's social media pages so that they are not publicly accessible. Provided that there is no violation of the rules or substantive law pertaining to the preservation and/or spoliation of evidence, the inquirer also may advise that a client remove information relevant to the foreseeable proceeding from social media pages as long as the social media information or data is preserved."
Board member Carl Schwait, chair of the Board Review Committee on Professional Ethics, said the BRCPE voted 6-3 to recommend approval of the opinion.
Board members expressed concern about whether removing information from social media, even if it is preserved, would alter the form or context of that information which might raise spoliation of evidence claims and violate Bar Rule 4-3.4(a). That rule prohibits attorneys from blocking another party's access to evidence or from destroying or altering evidence or something that is reasonably foreseeable to be evidence.
Board member Jay Cohen asked if the opinion imposed any new burdens or risks on lawyers.
"The majority of the committee felt it was compliant with the rule that we already have that said lawyers could do what it advised as long as nothing was destroyed," said Schwait, adding that most committee members felt it would require a rule change before lawyers could advise clients not to remove information from social media.
"I don't think it's any different than any other type of evidence," said board member Andy Sasso. "It simply makes it clear that this type of evidence is no different than any other type of evidence. The lawyer can advise the client to take the information down, but it may require the hiring of an expert to preserve" the information.
But board member Renee Thompson disagreed, arguing that online electronic matters are different.
"I think social media, being the dynamic communication that it is, is different than just a photograph or another piece of evidence," she said, adding it may be important to capture comments and conversations that come from a post. She said a copy of a posting may have much different information than is available from the social media platform.
"We're not dealing with just documents or photographs of something of that nature, and if you do counsel to take down this type of information ... I think attorneys are subjecting themselves to a plethora of problems," she said, adding the opinion also doesn't say if the attorney or client is required to preserve the information or how to preserve it.
Board member Dennis Kainen said he thinks the opinion accurately reflects the rule, but that the rule is deficient and could leave lawyers in peril.
But board member Michael Hooker said board members' concerns were overblown.
He said underlying questions about preserving related information from an online posting, including metadata, is not an ethics matter. "That's a substantive, a rule of evidence, preservation of law question for which there is a great body of law already on the books, called spoliation of evidence," Hooker said. "That's the province of the court, not the province of The Florida Bar Board of Governors."
The board by voice vote approved the advisory opinion, with some dissents.
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|Publication:||Florida Bar News|
|Date:||Nov 15, 2015|
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