The Ethics of Managing a Client’s Social Media Content

This article describes the ethical issues that counsel should consider when advising clients about their social media accounts, including modifying social media account privacy settings, preserving evidence, and advising clients about what to post and not to post.

Social media accounts contain evidence that, like any other evidence, counsel must identify, preserve, and use during negotiations and litigations. Social media evidence may be relevant to a client’s employment case in many ways. For example, it may show:

• A client’s state of mind during the period of harassment or discrimination.
• Evidence of sexual harassment by a supervisor or coworker.
• The employee’s or employer’s intent during a contract negotiation.
• Evidence of physical or emotional injury, or lack of injury, to the client.
• Attempts to mitigate damages.
• Evidence of defamation.
• Photographic or video evidence related to the claims.
• A post-accident description or admission.
• Evidence of unfair competition.
• That a party or witness was lying for impeachment purposes.

Counsel should familiarize themselves with how social media operates. The comments to Model Rule 1.1 of the American Bar Association Model Rules of Professional Conduct (MRPC) state that lawyers “should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.”

Some additional relevant rules include:

• MRPC Rule 1.3 (diligence).
• MRPC Rule 3.4 (fairness to opposing party and counsel).
• MRPC Rule 3.6 (trial publicity).
• MRPC Rule 4.1 (truthfulness in statements to others).
• MRPC Rule 4.2 (communication with person represented by counsel).
• MRPC Rule 4.3 (dealing with unrepresented person).
• MRPC Rule 4.4 (respect for rights of third persons).
• MRPC Rule 8.4 (misconduct).

While the MRPC do not impose independent obligations on attorneys, most states have adopted the MRPC with modifications as their state rules of professional conduct. Counsel should be aware of how their state ethical rules apply to social media. Some states with bar associations that have issued opinions regarding social media include New York, Pennsylvania, North Carolina, and Florida. The bar opinions discussed in this Practice Note interpret the rules of professional conduct for their respective states.

In addition to the ethics rules, counsel may also be subject to civil liability and sanctions for not preserving evidence as required by the Federal Rules of Civil Procedure (FRCP). Counsel should discuss these matters with their clients during their initial consultation or soon after.

Counsel should advise all potential and current clients about social media to ensure that:

• Clients do not harm their case by posting damaging content.
• Clients preserve and do not destroy relevant evidence.
• Clients do not violate any confidentiality agreements or a protective order.
• Clients protect confidentiality and the attorney client privilege.

Managing the Client’s Social Media Content

Counsel should expect that opposing counsel will monitor a client’s social media account. In anticipation of this, counsel should ask the client to identify the types of social media that they maintain and determine whether there may be relevant evidence on any of the accounts. The review process may require going through all of a client’s posts and messages during a specific period of time or searching social medial content using key terms.

Counsel should have a checklist of social media accounts to show the client that includes, but is not limited to, the following:

• Facebook.
• Instagram.
• X.
• Snapchat.
• LinkedIn.
• YouTube.
• WhatsApp.
• Any dating apps, such as Tinder, Hinge, Bumble, OkCupid, or Match.

Modifying a Client’s Privacy Settings

Ethical rules may require counsel to understand the impact of privacy settings on a client’s account and preserving social media material (Pennsylvania Bar Ass’n, Formal Opinion 2014-300).

Certain social media websites and apps, such as Facebook and Instagram, allow the user to modify who can or cannot view the information being posted. A client may wish to change their privacy settings for reasons unrelated to a litigation. For example, a client may want to shield information from a potential employer or from an ex-partner who is harassing the client.

Clients may also wish to change their privacy settings so that their social media posts are not publicly accessible to prevent certain people from viewing their social media postings during a pending negotiation or litigation, such as:

• A current or former employer.
• Coworkers or clients.
• Opposing counsel in a litigation.
• A competitor.
• The media.

Ethics opinions and guidelines have consistently held that counsel may advise a client on changing the privacy settings in their social media account (see Professional Ethics of The Florida Bar, Opinion 14-1 (2015), North Carolina Ethics Opinion 2014-5 (July 2015)). The New York County Lawyers Association (NYCLA) released an ethics opinion providing that an attorney may have an obligation to advise the client on legal and ethical steps to “mitigate any adverse effects on the clients’ position emanating from the clients’ use of social media.” This includes reviewing the client’s social media and advising the client that certain social media posts may be used against the client. (NYCLA, Ethics Opinion 745 (2013).)

Counsel should advise clients to change their privacy settings to the highest level of privacy to ensure that only trusted contacts may view their posts. The Philadelphia Bar Association has opined that providing this type of instruction does not violate Pennsylvania’s Rules of Professional Conduct’s prohibition on obstruction or concealment of evidence. (See Philadelphia Bar Association Opinion 2014-5.)

Counsel should also advise clients to refrain from posting anything that could be related to a client’s case while the case is active. This type of direction is similar to advising a client to not speak to former coworkers or current colleagues about a pending matter.

Previewing a Client’s Post Before It Is Published

Counsel may review what clients plan to publish on social media before it is published. Counsel may ethically guide the client regarding the content, as long as counsel does not:

• Assist the client in publishing false or misleading information that may be relevant to a claim.
• Delete or destroy evidence that might be relevant without preserving it.

NYCLA has opined that counsel may:

• Access a publicly available social media page.
• Advise a witness to publish truthful information favorable to counsel’s client.
• Discuss the significance and implications of social media posts.
• Advise a client to consider how opposing counsel or other legal adversaries may perceive social media content.
• Warn the client that opposing counsel may obtain access to a client’s social media pages through court orders or discovery.
• Review the posts that the client intends to publish or has published.
• Discuss possible cross-examination inquiries related to the client’s social media content.

(NYCLA Opinion 745.)

Preserving the Client’s Social Media Content

Parties have a duty to preserve all documents that are related to their matter including posts on social media. The attorney has a duty to inform the client of this obligation and to implement controls to ensure that the client is complying with the obligation.

The duty to preserve evidence arises when a party reasonably anticipates litigation. A plaintiff’s duty to preserve is often triggered before a defendant’s because the plaintiff usually knows when there is potential for litigation. This duty may be triggered as early as the initial consultation. An attorney cannot blindly rely on their client to identify and preserve relevant evidence. An attorney must become familiar with any evidence that the client has and instruct the client on how to preserve it (see Zubulake v. UBS Warburg LLC, 229 F.R.D. 422 (S.D.N.Y. 2004)).

Counsel should consider the following when preserving social media content:

• Provide the client with a litigation hold letter.
• Identify all social media sources of ESI.
• Document the steps taken to preserve ESI and the reason for those steps.
• Consider hiring a forensic expert to conduct the preservation of ESI.
• Update and issue periodic reminders to the client of the litigation hold.

Removing Social Media Content

Counsel is generally not permitted to assist or advise a client to conceal or destroy evidence. MRPC Rule 3.4 provides that a lawyer should not “unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal” evidence or assist another person in taking such acts.

However, multiple ethics opinions have stated that counsel may advise clients to take down a specific post assuming that it has been properly preserved. NYCLA stated that if the removal does not violate any laws related to destruction or spoliation, “there is no ethical bar to taking down such material” if the substance of the post is “preserved in cyberspace or on the user’s computer” (NYCLA Opinion 745 (2013)). The West Virginia Lawyer Disciplinary Board has stated that attorneys may instruct clients to delete information on social media if the deletion is not illegal or spoliation and the attorney takes appropriate steps to preserve the information (West Virginia Legal Ethics Opinion 2015-02; see also Professional Ethics of The Florida Bar, Opinion 14-1 (2015), North Carolina Ethics Opinion 2014-5 (July 2015)).

Parties are still required to testify truthfully about any of the substance within any removed material or the fact that the material was removed or changed. If the client fails to answer truthfully, counsel must take prompt remedial action (MRPC Rule 3.3(a)(3)).

Counsel should approach removing social media content with extreme caution because preserving metadata may be difficult, expensive, and complicated. Counsel should not rely on the client to preserve the metadata. If necessary, they should hire an expert to analyze and preserve the potential evidence.

Sanctions for Failing to Preserve Evidence

A court may sanction a party for failing to take reasonable steps to preserve relevant social media evidence. In Allied Concrete Co. v. Lester, a Virginia court sanctioned counsel $542,000 for failing to preserve photographs from a client’s Facebook profile (736 S.E.2d 699, 702-03 (Va. 2013)). In Lester, the attorney instructed the client to clean up and deactivate his Facebook page. In response to a motion to compel, Lester’s counsel produced the Facebook page, but the client had deleted 16 photos and the lawyer did not produce the full version of the photos. The court concluded that the client’s deletion was a result of the lawyer’s instruction to clean up his page and sanctioned both the lawyer and the client.

In Gatto v. United Air Lines, Inc., the court ordered an adverse inference after the plaintiff deactivated and permanently deleted his Facebook account after the defendant requested its contents (2013 WL 1285285, at *4 (D.N.J. Mar. 25, 2013)).

Finally, in Bruner v. City of Phoenix, the court dismissed the plaintiffs’ harassment claims and ordered them to pay defendant’s attorneys’ fees as sanctions for plaintiff’s deactivation of their Facebook accounts, deletion of a relevant Facebook post, and other abusive discovery practices (2020 WL 554387, at *5 (D. Ariz. Feb. 4, 2020)). While the plaintiff’s counsel argued that it was difficult to obtain the social media evidence, the court found that he had a responsibility to instruct his client on preservation of evidence and held him jointly responsible for payment of attorneys’ fees (Bruner, 2020 WL 554387, at *8).