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?