A Clean Slate or a Trip to the Disciplinary Board? Ethical Considerations in Advising Clients to 'clean Up' Their Social Media Profiles

• Publication year: 2022

48 Creighton L. Rev. 763. A CLEAN SLATE OR A TRIP TO THE DISCIPLINARY BOARD? ETHICAL CONSIDERATIONS IN ADVISING CLIENTS TO 'CLEAN UP' THEIR SOCIAL MEDIA PROFILES

A CLEAN SLATE OR A TRIP TO THE DISCIPLINARY BOARD? ETHICAL CONSIDERATIONS IN ADVISING CLIENTS TO 'CLEAN UP' THEIR SOCIAL MEDIA PROFILES

JOHN G. BROWNING

It is a question that, sooner or later, most attorneys will have to confront: just how far can one go in advising a client about "cleaning up" his or her Facebook page or other social networking profiles? Regardless of one's area of practice, the ubiquitous nature of social media, combined with the dizzying array of personal information that is shared every day via social networking platforms and the increasing extent to which lawyers are mining this digital treasure trove of information, make it a critical aspect of the attorney-client relationship in the twenty-first century. Not only have entire cases been undermined by revelations from a party's Facebook page or Twitter account, but the social media missteps by attorneys and clients alike have resulted in spoliation findings and sanctions rulings in cases throughout the country. As the duties of "attorney and counselor at law" expand in the Digital Age to include counseling clients on what is posted in the first place on a site like Facebook, whether to post anything at all, what privacy settings or restrictions to adopt, and-perhaps most importantly-what content can be taken down and what must be preserved, it has become vital for lawyers to know where the ethical lines are drawn. This article will provide guidance to attorneys on how the ethical landscape has shifted by discussing the entire spectrum of attorney involvement from the relatively benign (advising clients on adopting privacy settings) to the more problematic issues of removing social media content and risking spoliation of evidence. In doing so, this article will examine the "new normal" for twenty-first century lawyers by not only analyzing the various ethics opinions and guidelines nationwide, which address the limits on how far lawyers can go in this regard, but also by studying how courts through the U.S. have treated parties who have removed content from their social networking pages, deactivated their Facebook accounts, or taken other measures to keep potentially incriminating posts or photos from prying eyes. As this article points out, the duty to preserve evidence has assumed new dimensions in an age dominated by electronic communications, as has a lawyer's threshold duty of providing competent representation.

I. THE IMPORTANCE OF KNOWING WHAT'S OUT THERE

Lawyers uncomfortable with technology cannot afford to take a "head in the sand" approach when it comes to their clients' activities on Facebook and other social media sites. One of the main reasons is the fact that social media has become the rule, rather than the exception. According to the Pew Research Center, as of January 2014, 74% of all online adults use social networking sites.(fn1) In addition, multi-platform use is more common than ever. Fifty-two percent of online adults use two or more social media sites, a significant increase over the 42% rate of just a year before.(fn2) Sites other than Facebook continue to have strong representation. For example, 23% of all online adults have a LinkedIn profile, while 22% are on Pinterest, 21% use Instagram, and 19% have Twitter accounts.(fn3) When we consider that 81% of all American adults use the Internet, the fact that 74% of the adult online population has at least one social networking presence becomes even more significant. Moreover, it is not simply the number of users (Facebook now boasts more than 1.3 billion worldwide) that is important, but also their level of engagement. With Facebook for example, 70% of its users engage with the site on a daily basis, and 45% acknowledge doing so at least several times a day.(fn4)

Social media has become increasingly important for people not just to maintain or expand social contacts, but also as a source for news and information. Half of all Facebook and Twitter users receive news on these sites, while 62% of Reddit users get their news from that site.(fn5) In addition, social media users are not limited to the purely passive experience of receiving information this way. Engagement with the news is a key feature of social media use, with 50% of social networking site users reporting that they have shared or reposted news stories, images, or video.(fn6) Forty-six percent acknowledge discussing a news issue or event online, while 14% have posted photos they took of a news event.(fn7) In fact, one study has demonstrated that, as of August 2012, 46% of all online adults have acted in the role of "content creator," posting original photos or videos online that they themselves had created, while 41% had assumed the role of "content curator," reposting photos or videos that they found online for the purpose of sharing with others.(fn8)

The fact that so many people are active social media users, and that their use transcends mere social content and includes generating and sharing information and content such as photos and videos, assumes tremendous significance for attorneys. What a client has posted or decides to post can have significant consequences for his or her case. Incriminating statements found in a status update or photos and video that contradict a key claim or defense can damage and even completely undermine a case. Consider the power attributed to photos posted on Facebook by a Florida appellate court considering their relevance and discoverability in a premises liability lawsuit:

In a personal injury case where the plaintiff is seeking intangible damages, the fact-finder is required to examine the quality of the plaintiff's life before and after the accident to determine the extent of the loss. From testimony alone, it is often difficult for the fact-finder to grasp what a plaintiff's life was like prior to an accident. It would take a great novelist, a Tolstoy, a Dickens, or a Hemingway, to use words to summarize the totality of a prior life. If a photograph is worth a thousand words, there is no better portrayal of what an individual's life was like than those photographs the individual has chosen to share through social media before the occurrence of an accident causing injury. Such photographs are the equivalent of a "day in the life" slide show produced by the plaintiff before the existence of any motive to manipulate reality. The photographs sought here are thus powerfully relevant to the damage issues in the lawsuit.(fn9)

It is not just that potential "smoking gun" photograph or a damaging admission in a Facebook post that lawyers need to concern themselves with when it comes to clients' social media use. Something as basic and seemingly mundane as knowing whom one's clients have "friended" online can be important for lawyers to know. Proving that one should keep friends close and "Facebook friends" even closer, vital information once thought limited in circulation to a select group of "friends" can be shared by these same "friends" with third parties. Two recent criminal cases illustrate this. In United States v. Meregildo,(fn10) the government was investigating a defendant, Colon for involvement in illegal gang activity.(fn11) As part of that investigation, the government wanted access to the contents of Colon's privacy-restricted Facebook account. To support its application for a search warrant, federal prosecutors established probable cause by pointing to posts made by Colon on his Facebook page about gang-related activity.(fn12) How did they obtain access to this privacy-restricted page? One of Colon's existing Facebook "friends" became a cooperating witness and provided the government with the access it needed. Colon challenged the judge's decision to allow this, arguing that the use of a cooperating witness to obtain his Facebook postings violated his Fourth Amendment rights.(fn13) In its opinion, the Southern District of New York found no Fourth Amendment violations, pointing out that once Colon shared his posts with his "friends," he "surrendered his expectation of privacy" much like someone who sends an email, or mails a letter, upon delivery of such correspondence.(fn14) The court reasoned that Colon's "friends" were free to do as they wished with the information he shared, including providing it to law enforcement. The court concluded:

Where Facebook privacy settings allow viewership of postings by "friends" the government may access them through a cooperating witness who is a "friend" without violating the Fourth Amendment. While Colon undoubtedly believed that his Facebook profile would not be shared with law enforcement, he had no justifiable expectation, that his "friends" would keep his profile private.(fn15)

In 2014, the United States District Court for the District of New Jersey relied on Meregildo in deciding United States v. Gatson(fn16) and took matters a step further. In Gatson, the criminal defendant willingly accepted a "friend" request with an Instagram account that was bogus-created by law enforcement for the express purpose of interacting with the defendant.(fn17) Gatson's acceptance of the request meant that police were able to view photos and other incriminating content posted by Gatson to his Instagram account.(fn18) In denying Gatson's Fourth Amendment...