Hundreds of millions of people around the world are doing it. They are posting statuses on Facebook, tweeting 140 characters of #hashtag loaded messages on Twitter, or uploading videos on YouTube. Truly, for many, social media exploded into our lives and connected us with old colleagues and family members located in various parts of the world. Regrettably for others, social media is a curse that has led to political scandals, or even criminal convictions. As an illustration, take the viral YouTube video “I killed a Man,” by Matthew Cordle. In Matthew’s video, he confesses to driving drunk and killing Vincent Canzani. In fact, the video shows Matthew writing and prominently displaying a note: “I will take full responsibility for what I’ve done.” As a result, Matthew was indicted on aggravated vehicular homicide, pled guilty to the charge, and sentenced to six and a half years in prison. With this in mind, what duty, if any, does an attorney have to monitor their client’s social media activity?
In Michigan, an attorney’s conduct is governed by the Michigan Rules of Professional Conduct, in which attorneys may be subject to disciplinary action for violating these rules. While there are no specific rules regulating attorney’s conduct and social media, an often gray area arises during discovery. More specifically, under Rule 3.4, Fairness to Opposing Party and Counsel, the rule states, in part, a lawyer shall not “unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value.” Here in Michigan, very little exists on whether deleting social media is an unlawful obstruction to another party’s access to evidence. However, in a recent New York Ethics Opinion in NYCLA 745, the opinion delved into the spoliation of evidence and the attorney’s duty to preserve evidence. Moreover, the opinion provides some insight on how it may be an actionable offense to delete social media that has potential evidentiary value; but, leaves the issue on duty to preserve evidence to substantive law. Perhaps, in the near future, we can anticipate a court on making a future ruling on an attorney’s duty to preserve social media that has potential evidentiary value.
In contrast, can an attorney terminate their representation with a client because of their client’s social media posts? The answer largely depends on the context of the social media. Suppose a client makes a series of statements through social media that suggests the client may be misleading the attorney. The attorney, under Rule 3.3, has an ethical duty of candor towards the tribunal and shall not knowingly “make false statements of fact…” In addition, Rule 3.3 commentary suggests that attorneys must take remedial measures to correct these false statements of fact. Moreover, if the attorney and client are at an impasse, then that may allow the attorney, under Rule 1.16, to terminate representation in that “representation may violate a Rule of Professional Conduct.” Thus, as social media becomes a larger part of our lives, attorneys need to be more cognizant of their client’s social media activity and the possible ethical implications that follow.
By: Fahd Haque, Law Clerk for Moss & Colella, P.C. If you have any questions, please email Fahd Haque at FHaque@mosscolella.com