Does a North Carolina lawyer have to advise a client about their social media in litigation, and can the lawyer tell the client to delete posts?

Plain-English summary

A client's social media postings may be relevant to the client's matter and may be used to impeach the client, yet the lawyer in the inquiry does not use social media and is unfamiliar with how it functions. On Inquiry #1, the opinion concludes that Rule 1.1 (competence) requires the lawyer to understand social media. It relies on Comment [8], which says a lawyer should keep abreast of the benefits and risks of relevant technology, and treats social media as relevant technology. Quoting New Hampshire Bar Association Opinion 2012-13/05, the opinion states counsel has a general duty to be aware of social media as a source of useful litigation information, to be competent to obtain it directly or through an agent, and to know how to use it. Where postings could be relevant and material, competent representation includes advising the client about the legal ramifications of existing postings, future postings, and third-party comments.

On Inquiry #2, about removing existing postings before suit is filed, the opinion ties the answer to Rule 1.2(d) (a lawyer may not counsel or assist a client in conduct the lawyer knows is criminal or fraudulent) and Rule 3.4(a) (a lawyer may not unlawfully obstruct another party's access to evidence or unlawfully alter, destroy, or conceal material with potential evidentiary value). The lawyer therefore must examine the law on preservation of information, spoliation, and obstruction of justice. If removal is not spoliation and is not otherwise illegal, or is done in compliance with the rules and law on preservation, the lawyer may instruct the client to remove existing postings, and the lawyer may take possession of printed or digital images of the postings made for preservation, citing New York State Bar Ethics Opinion 745 (2013).

On Inquiry #3, the opinion concludes a lawyer may instruct the client to change security and privacy settings to the highest level of restricted access, provided doing so is not a violation of law or a court order.

In practice

Under the North Carolina rules as they stood at the time of the opinion, conduct in which a litigator ignores a client's relevant social media is not competent representation; the opinion holds that the duty of competence under Rule 1.1 extends to understanding social media and advising the client about how existing postings, future postings, and third-party comments could affect the matter. Per the opinion, whether a lawyer may have the client take down existing postings turns on the law of spoliation, preservation, and obstruction: removal is permitted only if it is not spoliation and is not otherwise illegal, and the opinion contemplates the lawyer preserving copies of anything removed.

The opinion also concludes that advising a client to raise privacy and security settings to the most restrictive level is permissible as long as that step violates no law or court order.

Common questions

Q: Does a North Carolina lawyer who does not use social media still have to advise a client about it?

A: Yes. Opinion #1 holds that Rule 1.1 competence includes keeping abreast of relevant technology under Comment [8], which covers social media, so the lawyer must advise the client about the legal effect of postings that could be relevant and material.

Q: Can a lawyer tell a client to delete social media posts before a lawsuit is filed?

A: Only if removal is lawful. Opinion #2 says the lawyer must check the law on preservation, spoliation, and obstruction; if removal is not spoliation and is not otherwise illegal, the lawyer may instruct the client to remove existing postings, but Rule 1.2(d) and Rule 3.4(a) bar assisting unlawful destruction of evidence.

Q: Should the lawyer keep copies of anything the client removes?

A: The opinion contemplates it. Opinion #2 says the lawyer may take possession of printed or digital images of the client's postings made for purposes of preservation, citing New York State Bar Opinion 745.

Q: Can a lawyer advise a client to make their social media private?

A: Yes. Opinion #3 says a lawyer may instruct the client to change security and privacy settings to the highest level of restricted access if doing so does not violate law or a court order.

Background and rules framework

The opinion interprets North Carolina Rule 1.1 (competence, the analogue of Model Rule 1.1) and its Comment [8], which directs a lawyer to keep abreast of the benefits and risks of relevant technology. It reads that duty to require competence in social media when a client's postings bear on the matter.

For the removal question, the opinion applies Rule 1.2(d) (a lawyer may not counsel or assist conduct the lawyer knows is criminal or fraudulent, the analogue of Model Rule 1.2(d)) and Rule 3.4(a) (fairness to opposing party and counsel; no unlawful obstruction, alteration, destruction, or concealment of evidence, the analogue of Model Rule 3.4(a)). The opinion frames the line as the external law of spoliation, preservation, and obstruction, not a freestanding ethics standard.

Citations and references

Rules of Professional Conduct:

• MR 1.1 / NC Rule 1.1 (competence; Comment [8], relevant technology)
• MR 1.2 / NC Rule 1.2(d) (counseling or assisting crime or fraud)
• MR 3.4 / NC Rule 3.4(a) (fairness to opposing party; obstruction or destruction of evidence)

Cases:

• Jones v. GMRI, Inc., 144 N.C. App. 558, 551 S.E.2d 867 (2001), spoliation inference (quoting Yarborough v. Hughes, 139 N.C. 199, 51 S.E. 904 (1905)).

Other opinions cited:

• N.H. Bar Ass'n Op. 2012-13/05: counsel's general duty to be aware of and competent with social media in litigation.
• N.Y. State Bar Ethics Op. 745 (2013): a lawyer may advise a client about removing postings if the lawyer complies with the law on preservation and spoliation.

See also

• Maine Ethics Op. 217: Access and Use of Social Media
• NY State Bar Op. 977: Social Media in a Pending Case
• CA Bar Op. 2012-186: Social Media Postings and Advertising

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/2014-formal-ethics-opinion-5/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Inquiry #1:

A client’s postings and other information that the client has placed on a social media1 website (referred to collectively as “postings”) are relevant to the issues in the client’s legal matter and, if the matter is litigated, might be used to impeach the client. The client’s lawyer does not use social media and is unfamiliar with how social media functions.

What is the lawyer’s duty to be knowledgeable of social media and to advise the client about the effect of the postings on the client’s legal matter?

Opinion #1:

Rule 1.1 requires lawyers to provide competent representation to clients. Comment [8] to the rule specifically states that a lawyer “should keep abreast of changes in the law and its practice, including the benefits and risks associated with the technology relevant to the lawyer’s practice.” “Relevant technology” includes social media. As stated in an opinion of the New Hampshire Bar Association, N. H. Bar Ass’n Op. 2012-13/05, “counsel has a general duty to be aware of social media as a source of potentially useful information in litigation, to be competent to obtain that information directly or through an agent, and to know how to make effective use of that information in litigation.”

If the client’s postings could be relevant and material to the client’s legal matter, competent representation includes advising the client of the legal ramifications of existing postings, future postings, and third party comments.

Inquiry #2:

The client’s legal matter will probably be litigated, although a law suit has not been filed. May the lawyer instruct the client to remove postings on social media?

Opinion #2:

A lawyer may not counsel a client or assist a client to engage in conduct the lawyer knows is criminal or fraudulent. Rule 1.2(d). In addition, a lawyer may not unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value. Rule 3.4(a). The lawyer, therefore, should examine the law on preservation of information, spoliation2 of evidence, and obstruction of justice to determine whether removing existing postings would be a violation of the law.

If removing postings does not constitute spoliation and is not otherwise illegal, or the removal is done in compliance with the rules and law on preservation and spoliation of evidence, the lawyer may instruct the client to remove existing postings on social media. The lawyer may take possession of printed or digital images of the client’s postings made for purposes of preservation. See N.Y. State Bar, Ethics Op. 745 (2013)(lawyer may advise a client about the removal of postings if the lawyer complies with the rules and law on preservation and spoliation of evidence).

Inquiry #3:

May the lawyer instruct the client to change the security and privacy settings on social media pages to the highest level of restricted access?

Opinion #3:

Yes, if doing so is not a violation of law or court order.

End Notes

• “Social media” is defined as “forms of electronic communication ([such] as Websites for social networking and microblogging) through which users create online communities to share information, ideas, personal messages, and other content ([such] as videos).” Social Media, Merriam-Webster, merriam-webster.com/dictionaty/social%20 media (last visited Jan. 20, 2015).

• Black’s Law Dictionary 1437 (8th ed. 2004) defines spoliation as the intentional concealment, destruction, alteration or mutilation of evidence, usually documents, thereby making them unusable or invalid. The doctrine of spoliation of evidence holds that when “a party fails to introduce in evidence documents that are relevant to the matter in question and within his control...there is a presumption, or at least an inference that the evidence withheld, if forthcoming, would injure his case.” Jones v. GMRI, Inc., 144 N.C. App. 558, 565, 551 S.E.2d 867, 872(2001) (quoting Yarborough v. Hughes, 139 N.C. 199, 209, 51 S.E. 904, 907-08 (1905)).