What should we tell our clients about Facebook and other social media?
As a divorce attorney, one of my initial steps with any client is to ascertain the person’s social media usage. On the firm’s intake form, I ask the person to advise if he or she tweets, has a Facebook account, has a personal blog, or has a Linkedin page. Likewise, I ask if his or her spouse has any of these accounts. I need to know where potential evidence against my client or the other party may appear, and I advise my client to act appropriately on these accounts. “Act like a Judge is watching every single post” is my general advice to a client.
I have never had a client ask me about what he or she should do regarding past posts; however, you cannot advise a client to destroy evidence, right? Recently this issue came before a Virginia court in the case of Lester v. Allied Concrete Company. As part of discovery, defense attorneys sought information from Plaintiff’s Facebook page. Plaintiff’s attorney incorrectly surmised that if Plaintiff deleted his Facebook account PRIOR to the signing of the discovery answers, the Plaintiff could truthfully answer that he did not have a Facebook account. In addition, after being served with discovery regarding the Facebook account, Plaintiff’s attorney instructed his support staff to tell the Plaintiff to “clean up his Facebook account.”
These actions were only the tip of the iceberg when it came to the Plaintiff’s behavior and the behavior of Plaintiff’s attorney. At a later deposition and at trial, Plaintiff denied having a Facebook account. Clearly, even though arguing semantics is part of an attorney’s job, this type of behavior is questionable at best. Judges do not like questionable ethical behavior, and as a result, Plaintiff and his attorney were sanctioned, heavily for these actions. In addition, the Order referred the attorney’s behavior to the Virginia State Bar.
What do we take away from this case? Deleting social media (Facebook pictures, tweets, blog posts, etc) can be seen as spoliation of evidence. As an attorney, we do not want to dabble in the gray area of ethics. It is important to understand that advising your client to edit past behavior on social media is just like telling your client to destroy critical documents, which we all know we should not do.
