Ethics and Social Media
August 19, 2013 § 3 Comments
Facebook, MySpace, and Twitter, along with other social media sites, nowadays find their way into evidence in family law cases. Add in the texting, sexting and emailing that seems to be rampant, and you have a rich source of salacious proof that can prove fault and unfitness from every conceivable angle.
Most attorneys, I am told, advise their clients early on to shut down their social media pages and clean up their smart phones.
Are there ethical implications to that advice?
Well, here’s an item from the August 7, 2013, online ABA Journal that might be of interest:
A Virginia lawyer who advised a plaintiff suing over the death of his wife to clean up his Facebook photos has agreed to a five-year suspension.
Matthew Murray was unavailable for comment on his suspension because he was volunteering with a group performing maintenance on the Appalachian Trail, relatives told the Daily Progress. The Legal Profession Blog notes the July 17 suspension order, published online on Aug. 2.
Murray’s client, Isaiah Lester, had sued Allied Concrete for the death of his wife caused when a cement truck crossed the center line and tipped over on the Lesters’ car.
Murray had instructed a paralegal to tell Lester to clean up his Facebook page after lawyers for Allied Concrete sought screen shots and other information, the Daily Progress says. Lester deleted 16 photos, including one in which he held a beer can and wore a T-shirt that said “I (heart) hot moms.” Defense lawyers recovered the photos before trial and jurors were told about the scrubbed photos.
As a sanction, a trial judge had ordered Murray and Lester to pay $722,000 to lawyers representing Allied Concrete for their legal fees. The judge had also slashed Lester’s $8.5 million jury award, but the Virginia Supreme Court reinstated the verdict, the Daily Progress reported in January.
The suspension order says Murray violated ethics rules that govern candor toward the tribunal, fairness to opposing party and counsel, and misconduct.
It seems to me that the transgression here was that the advice to purge the photos came after the discovery requests had been made.
Is it unethical to advise a client at that first interview, before any pleadings or discovery are filed, to take down questionable photos and posts from Facebook and MySpace? Is that destruction of evidence? It’s one thing to stop self-damaging conduct; it’s quite another to recreate and repair the past by doing away with, or even fixing, the incriminating items.
I don’t have an answer. I only have the question.
An earlier post on introduction of all forms of electronic evidence is here.
Thanks to attorney Marcus D. Evans.
The Better Chancery Practice Blog 
I was a bit puzzled how what the attorney told the client even came to light. I’ve been working on the assumption that there is some sort of privilege applicable.
That said, comments to the ABA item are informative:
“Mr. Murray told his client to destroy mateiral that was covered by an express document request. Then he lied to the court about doing it and blamed his paralegal for giving the instruction. “
That would do it, in my opinion.
I think it’s unethical and as a juror if I found out that either the prosecution or the defense had asked their client to take down questionable photos and posts from any social media site I would consider that to be much more questionable behavior than Larry hearting hot moms.
But, then again, I understand why it is done.
I watched a movie called Hot Coffee this weekend. Quite interesting. I found myself wondering what your thoughts would be on the cases posed.