Opinion

Is Advising Clients To Clean Up Social Media After Filing a Lawsuit Questionable?

By K Royal, CIPP/US, CIPP/E

A recent article stirred up quite a bit of discussion among my LinkedIn friends.

Opposing counsel requested discovery of a plaintiff’s Facebook page. The plaintiff’s attorney advised him to clean it up and was suspended for five years from the practice of law. The disciplinary system actions states the suspension was for “violating professional rules that govern candor toward the tribunal, fairness to opposing party and counsel and misconduct.”

My immediate reaction on the title of the article “lawyer agrees to five-year suspension for advising client to clean up his Facebook account” had me on the side of the lawyer. It makes sense to clean up one’s image in a lawsuit—as long as doing so doesn’t hide incriminating evidence, etc. But in reading the article, and learning that this advice came after a discovery request, of course interfering with discovery orders would warrant discipline for an attorney. It has overtones of Enron’s paper-shredding party.  

Advising clients to clean up social media after a discovery request for that information is clearly wrong.

So let’s take this a step back. Let’s pretend there was no discovery request.

Is advising clients to clean up social media after filing a lawsuit questionable? Is advising clients to clean up social media before filing a lawsuit good? Bad? Is that hiding the smoking gun?

And this was a civil action, meaning one person sued another. Would it make any difference if it was a criminal action? If the lawyer was a defense attorney, is this merely trial strategy?

Does cleaning up one’s social media image fall into the realm of one having the right not to incriminate oneself? Of course, we’ve all heard the stories of law enforcement electronically patrolling social media to find criminal action—threats against a politician, child abuse, robbery. It makes sense to look online for bad behavior. But this possibility goes beyond that. This is akin to telling your client to go to church, no wild parties, wear a suit to court and keep your nose clean before trial. 

Or is it?

If a criminal defendant has a diary—an old-fashioned paper one—is that protected from discovery? What if it is an online diary that is kept private between the client and the diary software, server host, Internet provider and any hackers who are interested? Sure, if a person knows he is facing potential liability for an action that he writes about in letters that are not mailed, diaries, etc.—the person can do whatever he wants to that information, but can his lawyer advise him to do so? Is this a right against self-incrimination?

Now when we take this further and publish incriminating information on social media, at what point does a court consider it private? Should we need to check a person’s privacy settings before deciding if they are private or not? Is the fact that it is online cross that privacy line? Does it matter how many “friends” have access to the information?

This is an interesting twist to social media privacy. Certainly, the best thing is not to post things on social media that you would not want posted on the front page of a newspaper or shown on the six o’clock news. Very few individuals on popular social media consider ramifications that could result from an improvident posting. Hopefully, very few individuals intend to commit criminal behavior. But one rarely anticipates nasty civil actions. So if I tell you to clean up your social media image right now, it is not legal advice. It may, however, be common sense.  

What is your view on lawyers advising clients to clean up their social media or on individuals cleaning up their social media prior to pending legal action, civil or criminal? Is social media self-incrimination?

More from K Royal

About the Author

K Royal, CIPP/US, CIPP/E, is privacy counsel at Align Technology and has over 20 years of professional experience in the legal and health-related fields. Royal has a particular interest in the relationship between health and technology—such as telesurgery, bioethics and privacy. As an attorney, she has been recognized as a Forty-under-40 honoree for Phoenix, as an educational leader through the YWCA and as one of the top pro bono attorneys in Arizona. Royal is currently an in-house global privacy counsel and finishing her PhD in public affairs.

See all posts by K Royal

Comments

  • August 14, 2013
    Matt
    replied:

    With due respect, I believe the states that “if a person knows he is facing potential liability for an action that he writes about in letters that are not mailed, diaries, etc.—the person can do whatever he wants to that information” is flat wrong.  It amounts to the statement that private, internal documents relevant to a disputed matter can be destroyed, notwithstanding contemplated litigation.  Shades of Enron.

    If a potential litigant writes a letter about a fact that is likely to be material to reasonably expected litigation, it is spoliation.  That is true whether the material is in a personal diary, Facebook, or a memo from the CFO to the CEO.  The retention and preservation duty affixes based on the content of the material and its materiality, not based on its location or the manner in which it is kept.  As I understand it, the attorney was disciplined not because of timing, but because he advised his client to commit a tort and hide evidence.

    The deeper issue, to me, has to do with identifying what information is relevant.  One directs one’s client to clean up and wear a suit to trial because the client’s appearance should be irrelevant to the decision and you want to avoid prejudicing the fact finder.  Here, the excluded photographs might be relevant to a claim of loss of consortium, but could not possibly be relevant to a claim of wrongful death.  Presumably if the attorney had successfully kept them out of the courtroom the failure to produce them, and destruction of them, would have been excused.

  • August 15, 2013
    Mark
    replied:

    What I am concerned most about this article, is the lack of specific laws (privacy or otherwise) related to social media.

    My Experience:
    Recently, I was involved in a tort action. My lawyer advised me not to delete anything from my Faceboook or Twitter accounts as we would be going into discovery. The issue I had, however, is that I had deleted several posts on my social media accounts, two days before my lawyer advised me not to. At discovery, my lawyer had to advise the other party that I had “unknowingly” deleted social media posts before being legally advised not to do so. Ultimately, the other party and their lawyer didn’t care as they were not interested in my social media.

  • August 18, 2013
    K
    replied:

    Matt, these same issues were the ones that prompted me to write the entry. My statement about a person can do whatever they want with letters and paper diaries was more along the line that the average person would not consider that their personal papers should not be destroyed, that it is “spoliation of evidence.” They look at it from their own perspective that they simply may not want it to exist and until or unless they are told by the court or their attorney not to do so, it just does not occur to them that they are doing something that in the court’s eyes may be illegal - especially if there is not a court involved at the time of destruction. It was not my intent to indicate that the court would approve of it - just that from a practical perspective, a single person burning their diary before there is a legal filing, before there is a court, or before there is an attorney - is not likely to be charged with spoliation of evidence. Corporate clients notwithstanding.

  • August 21, 2013
    Scott
    replied:

    I think the most important element here when discussing paper diaries vs. social media (and what underpins Ms. Royal’s statements) is that no one but the author may realize that the paper exists. Thus, if it is destroyed, likely no one would know but the destroyer. Social media, by its very nature, is public. It is known whether it exists and can be easily ascertained if any portion was destroyed. Key point: rarely is anything online ever truly destroyed.

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