New and events of the Philadelphia Bar Asso.
Issue link: https://thephiladelphialawyer.epubxp.com/i/434516
the philadelphia lawyer Winter 2015 9 I magine this scenario. Your cli- ent was injured in an accident, and claims that because of the herniated discs in his lower back he can no longer perform his job as a construction worker. You are preparing for trial when defense counsel serves a set of interrogatories and a request for production of documents requesting a complete copy of the client's Facebook page, including photographs, etc. You then go online and take a look at the client's Facebook page and discover that there are some great photos of the client parasailing while on vacation. There are also some photos of your client shovel- ing out his house during last winter's storms, accompanied by boasting cap- tions like, "Snow can't stop me," and "I may be 50, but I can still shovel like I'm 18." Now what do you do? • Can you tell the client to change his privacy settings because his Facebook posts are available for "everyone" to see? • Can you instruct the client to remove the photos and other content that you know will damage his case? • Do you have to produce the Facebook page and the photos? Of course, your real concern is what will disclosure of this information do to the value of the case – and to your fee? After all, this was going to be a million dollar case. The Philadelphia Bar Association Professional Guidance Committee recently addressed these issues in Opinion 2014-5. Its advice applies to all social media websites, such as Twitter and Instagram, concluding that, subject to the limitations described below: • A lawyer may advise a client to change the privacy settings on the client's Facebook page. • A lawyer may instruct a client to make information on the social media website "private," but may not instruct or permit the client to delete/destroy a relevant photo, link or other content, so that it no longer exists. • A lawyer must obtain a copy of a photograph, link or other content posted by the client on the client's Facebook page in order to comply with a request for production or other discovery request. • A lawyer must make reasonable efforts to obtain a photograph, link or other content about which the lawyer is aware if the lawyer knows or reasonably believes it has not been produced by the client. Although the opinion focused primarily on Facebook, it notes that clients' use of social media websites, such as Facebook, raises ethical concerns. At its most basic, this inquiry focuses on a party's and an attorney's duty to preserve evidence, and that this duty applies to information regardless of form, i.e., discoverable information may not be concealed or destroyed regardless whether it is in paper, electronic or some other format. The issue of the discovery of social media implicates various Rules of Professional Conduct, including Rule 1.1 ("Competence"), Rule 3.3 ("Candor Toward the Tribunal"), Rule 3.4 ("Fairness to Opposing Party and Counsel"), Rule 4.1 ("Truthfulness in Statements to Others") and Rule 8.4 ("Misconduct"). In particular, the Opinion concluded "in order to provide competent representation under Rule 1.1, a lawyer should advise Don't Delete That Photo The Ethical Issues Posed by Client Use of Social Media ethics By DANIEL J. SIEGEL Get Published in The Editorial Board of this mag- azine welcomes submissions from attorneys and other pro- fessionals who wish to share their expertise on law-related topics. Articles must be original and previously unpublished. Manuscripts should adhere to the following word counts: * Major Law-Related Articles: 2,000 words * Other Law-Related Features: 1,500 words * General Interest: 1,500 words * Fiction: 1,000 words * Practice Areas: 750 words * Essays or Humor: 750 words * Book Reviews: 750 words For more information, e-mail: tplmag@philabar.org.