There are a lot of stories out there about lawyers looking for evidence in clients' and opponents' Facebook pages, so it is interesting that I saw two stories this week on whether a lawyer can advice a client to delete material from the client's social media sites. One says it is ok, the other one argues it would not be. At first sight, it appears the stories contradict each other, but maybe they don't.
First, according to an opinion by the New York County bar's ethics committee (New York County Lawyers Ass'n Comm. on Professional Ethics, Op. 745, 7/2/13),attorneys may in some circumstances advise a client to “take down” social media and online postings that could have an adverse effect on the client's position in a civil matter: "An attorney may advise clients to keep their social media privacy settings turned on or maximized and may advise clients as to what should or should not be posted on public and/or private pages…. Provided that there is no violation of the rules or substantive law pertaining to the preservation and/or spoliation of evidence, an attorney may offer advice as to what may be kept on “private” social media pages, and what may be “taken down” or removed."
The key to this opinion is, of course, "provided that there is no violation of the rules or substantive law pertaining to the preservation and/or spoliation of evidence". In other words, what the opinion apparently says is that if it is OK to do it under the law, it is ethical to advice the client to do it. Nothing new there.
The question then is, is it OK to do it under the law? Not according to this story in the Professional Liability Matters blog which concludes that "[o]ne rule that is well established is the requirement that a legal hold be implemented for all relevant materials, including social media content. The failure to abide by this rule could be dire." (There is a follow up story in the PLM blog here.)