A touchy topic : What advice should a lawyer give with respect to postings and social media sites?
The New York City bar has issued some guidance for attorneys regarding:
[1] What clients should/should not post on social media and
[2] Whether they may remove existing postings. (See NYCLA Ethics Opinion 745, July 2, 2013.)
The Opinion notes that Americans spend an estimated 20% of their free time on social media such as Facebook, Twitter, LinkedIn, and the like. It is commonplace to post photographs, rants, and all matters of opinion for family and friends.
Sometimes, individuals are oblivious to the fact that intimate information about them has “gone public.” — for example, teenagers and college students posting photographs of themselves partying, binge drinking, or even indulging in illegal drugs. Meetings of the National Association of Criminal Defense Lawyers have often cited cases in which alleged sex “victims” have impeached themselves by what is posted in their social media.
The opinion discusses such matters as:
· Whether an attorney may properly access social media pages open to members of the public; this does not violate ethics rules limiting communication with adverse parties.
· Attorneys may not misrepresent to obtain information otherwise unobtainable.
· Social media users may claim some expectation of privacy in their posts. This rests on the settings available and their use of those settings.
· An attorney’s obligation to represent clients competently can give rise to an obligation to advise them, within legal and ethical requirements, about what they might do to mitigate adverse effects from social media postings. When, for example, can they “take down” materials which turn out to be harmful to their cause?
· The opinion recognizes the possible duty, under substantive law, to preserve potential evidence — even in advance of any request for discovery.
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