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Lawyer who urged client to clean up Facebook page has paid $544K legal bill; now faces ethics case

Jul 11, 2013, 06:10 am CDT

Comments

Should have advised the client to clean up his life.  Eventually, the Facebook page would catch up.

By B. McLeod on 2013 07 11, 7:29 am CDT

Not familiar with social media, are you McLeod?  No one looks at Facebook pictures of a clean life.

By Pushkin on 2013 07 11, 8:16 am CDT

It seems like there is a 1st Amendment argument against these sanctions. A posting is an ongoing publication of ‘speech.’ Surely a lawyer can advise his client not to repeat something he has said before orally - e.g. “I really should have checked my rear view mirror before changing lanes.”

With that distinction, if any destruction of evidence occurred it was on Facebook’s end. Presumably they also keep track of postings made, deleted or not, so I am curious at why this is seen as such a big deal.

By Tomberlin on 2013 07 11, 9:13 am CDT

Tomberlin -  Lawyer asks Aaron Hernandez: “Where is the gun you used to shoot Lloyd?”  Hernandez answers “I threw it into an open field next to Gillette Stadium.”  Lawyer says, “Go get it and make sure it’s never seen by anyone again.”  All of this comes out and lawyer subsequently is charged with destruction of evidence.  Can she defend by arguing that leaving a gun in plain sight in an open field is a form of symbolic speech protected by the first amendment and that she cannot be disciplined for exercising her first amendment right?

BTW - the lawyer can’t advise a client to change a story he has told before to make it stronger if the new story is false.  The issue of whether he will have to repeat the story is out of his hands.  The other lawyer will ask about it.

By Pushkin on 2013 07 11, 11:12 am CDT

Pushkin - Apple and oranges. Consider Aaron Hernandez telling his teammate that he threw the gun in an open field then relaying that conversation to his attorney. The attorney responds simply that, “You should not be telling people that.” The gun still remains in the field and the attorney has done his duty. The same way that the gun remains in the field, the underlying data sent to facebook remains. This opinion leave all sorts of ambiguity as to what an attorney must advise his client to do… can he tell his client that instead of posting questionable comments with the public visibility setting he should post to only his friends? Could he have set the visibility to “me only?”
Personally I believe that it is questionably malpractice not to advise a client to manage their online presence and I sincerely hope this ruling won’t come to my jurisdiction.

By Tomberlin on 2013 07 11, 11:30 am CDT

@4 & 5

Without knowing the facts of either the initial case or the ethics case, I would think the analogy would be to withholding or destroying evidence as opposed to changing statements.

By OKBankLaw on 2013 07 11, 1:40 pm CDT

If my client spray paints “IM GUILTY” on the side of his house, can I ethically advise him to paint over it?  I wouldve though that’d be ok.

By defensive lawyer on 2013 07 11, 1:46 pm CDT

Unless these rules are clarified, there could be a catch-22 situation created by a reasonable extension of two conflicting duties—one to advise the client to be careful about what he puts on social media websites, and the other to maintain the integrity of the court process, which includes the prohibition against instructing a client to destroy, alter, or conceal evidence.

The facts of this case, however, are well on one side of that “fine line”—Attorney Murray instructed his client to “clean up” his Facebook account AFTER receiving the discovery requests for the materials on Facebook.  That is a big, fat no-no.  Although valid concerns, the potential (and even arguably likely) problems indicated by the commenters above are outside the scope of the facts presented to us for review.  We therefore do not have occasion to decide whether the rules of ethics would create an impossible conflict under different facts.  We find that the rules are constitutional, as applied to this case.  The ruling in the linked article (which has more juicy details) is AFFIRMED.

By sb on 2013 07 11, 5:08 pm CDT

SB I wasn’t aware that the advice was given after a discovery request. I am in full agreement with sanctioning that kind of behavior.

By Tomberlin on 2013 07 11, 5:27 pm CDT

@7, defensive lawyer: Yes, that’s ok to spray-paint over the words.  The house itself is not evidence.  The other party might have eyewitnesses to the statement, or a photograph of it, though, and you can’t steal or destroy the photographs or tell the witnesses not to testify.  Also, if your client is asked in a civil case in a deposition or interrogatory whether he spray-painted those words on his house, you must advise him to testify truthfully; and if he states that he did not, as the attorney, knowing that it is false, you would be required to take steps to either get your client to correct that statement or withdraw from representation.

By sb on 2013 07 11, 6:02 pm CDT

There are a lot of leesons to be learned, and troubling messages, from this incident. However, once again, the incomplete reporting by the ABA becomes incorrect reporting, but it’s all the readers know.
The essence of the real problem, as said above, is “Attorney Murray instructed his client to “clean up” his Facebook account AFTER receiving the discovery requests for the materials on Facebook.” 
This was not a “concealment/destruction of evidence” case; it was an abuse of discovery case, that by extension led to fraud/perjury, since discovery responses (unless so qualified) are a statement of “this is everything I have or had when asked.”

After all, a guy legally drinking a beer, and wearing a legal albeit tacky T shirt, both at the same time, is evidence of nothing. Nothing. It should not be introduced to inflame the jury and it should be kept out—and that is how the defense should have handled it. That’s the lesson.

Can (or should) you advise a client to “clean up Facebook” before discovery? As to irrelevant but embarassing stuff, is that any different than taking a scruffy client and telling him to lose the mullet and cover the swastika tats?*  Isn’t it a part of the same conversation about spoliation?

In other words, there is a crucial distinction between evidence, which is to be preserved, and appearance, which can be altered.  But it is also a fuzzy line.  At the level as inaccurately reported, this is a “there, but for the grace of God, go I” case.

Note I am not defending Murray; his behavior in the case was worse than reported here; simply expanding on the “facts” for discussion.


*there are great collections on The Smoking Gun of mug shots of people in ironically embarassing clothing, hair, tattoos, etc.

By Hadley V. Baxendale on 2013 07 12, 8:56 am CDT

So, the article tells us little about what is correct behavior - it only provides us one example of incorrect behavior. 

Now the question:  Can you tell your client to “clean up your Facebook” after the first interview and before the lawsuit has been filed?

By BhamJim on 2013 07 12, 10:24 am CDT

You should do that.
But when I depose your client I am going to ask, “after the incident, did you delete anything from your facebook?  What? Why?”

(to the last question he will blurt out “my lawyer told me to.”  Hoo-ra.)

Do I get a spoliation inference instruction?

By Hadley V. Baxendale on 2013 07 12, 1:44 pm CDT

The duty to preserve evidence is not triggered by discovery requests or even by the filing of the lawsuit but rather by “reasonable anticipation of litigation.”  Your client has to preserve the evidence and you have to make sure he/she does.  One can download all of his/her Facebook posts thru a link on one’s Facebook page.  You should make sure that is done.  Not sure I would trust the client to do it.  Better to get the password from the client and hire someone with some IT talent to do it so that you can show you took appropriate steps to preserve that information if the IT whiz screws up.  I do not believe that you have to leave incriminating evidence on a social media site.  But you do have to download it to preserve it in the event that the other side asks for it.  My reasoning is that you are required to preserve evidence in existence at the time litigation is reasonably anticipated, but website and social media ESI is a continuing communication to anyone who accesses it so you are, in essence, creating new evidence of communication of that information each time someone else accesses it.  I do not think you have to continue the communication of the information, which would be creating new evidence, by leaving the evidence on Facebook or some other website.  You just have to preserve it in a way that it can be produced if requested in discovery.  I welcome anyone else’s opinion about that.

By GB on 2013 07 12, 5:08 pm CDT

GB, does that apply to that which is not evidence?  A picture of the defendant legally drinking a beer in a tacky T shirt is not evidence of anything—but it could cost him his case.
to me, it’s no different than having your client wear a long sleeved shirt over his Conferate flag tattoo for the trial on an automobile accident.

By Hadley V. Baxendale on 2013 07 13, 9:24 am CDT

If it’s not “evidence” it won’t be admitted and can’t cost him his case.

What you mean is, “should you get to wipe it because you think you have an argument it should not be admitted?”  The answer is no, because this is an attempt to make the court’s evidentiary rulings in advance.

By B. McLeod on 2013 07 13, 10:06 am CDT

Kudos to nos. 14 (GB) and 16 (B. McLeod) above. Well said!

We are supposed to be officers of the court and play by honorable rules. Litigation is supposed to be a search for truth, and advocates are supposed to represent their clients fairly, not by whatever the latest nasty scheme may be. Too many of us seem to be interested only in the Top Shyster of the Year Award. And that is a major reason why so many in the public despise the legal profession.

By SavannahGuy on 2013 07 14, 5:24 pm CDT

Facebook undermines Miranda rights and related law. Discuss?

By Law Student on 2013 07 15, 9:45 am CDT

@14, this purported requirement is ridiculous.
<< One can download all of his/her Facebook posts thru a link on one’s Facebook page.  You should make sure that is done.  Not sure I would trust the client to do it.  Better to get the password from the client and hire someone with some IT talent to do it so that you can show you took appropriate steps to preserve that information if the IT whiz screws up.  I do not believe that you have to leave incriminating evidence on a social media site.  But you do have to download it to preserve it in the event that the other side asks for it.  >>

Why stop at Facebook?  Every time a client hires me I must obtain access to EVERY website he has ever posted on (including this one perhaps) and create a permanent record of those website pages referring to my client. Now that you have asked your client to preserve it you have obligated your client to produce it when asked.

I am skeptical you actually would follow your own advice.

Cite me a rule that requires this?  It would place an impossible burden on any litigant.  Litigants are not the Library of Congress.

@13.  Go ahead and ask my client at a deposition if he deleted anything on Facebook.  “Sure I delete things all the time, before the incident, after the incident.  Put new stuff up, take old stuff down, try to keep my online profile fresh and interesting.

By Jeffrey Wilens on 2013 07 16, 3:12 am CDT

@19:  Sorry if you think that my post meant I urged getting all the social media posts of all your clients’ when they come in the door.  The post was written in the context of the story above.  The lawyer knew that there was something on his client’s Facebook page that could be evidence because opposing counsel had sent him a photo that appeared to be from Facebook yet he, in essence, told his client to go delete additional possibly relevant ESI under his control without guidance about what ought to be preserved.  You are obligated to find out what relevant ESI your client may possess or control and to preserve it.  Go look at the Phoenix Four case or some of Judge Scheindlin’s opinions.  Remains to be seen how every jurisdiction will define the scope of those duties.  Here, the attorney was aware that his client may have posted harmful evidence on Facebook and told him to go clean it up.  When he became aware of the one photo, he would have been wise to have gotten a download of the rest of the Facebook pages. 

The case above is not the only case like this though the repercussions were greater here than in most cases.  Social media postings are important evidence in cases involving divorce, employment injury, claims of emotional distress, and more.  If you are handling a case where your client’s social media postings could undermine your client’s or support your opponent’s claims or defenses, then you might want to tread carefully.  I do not think there is one rule that fits all cases so you will have to exercise your own judgment about how to meet your duties to discover and preserve your client’s relevant ESI.  I am fairly certain that most, if not all, courts will not want you telling your clients to get rid of relevant ESI.  The only question will likely be how much do you have to do to find out what relevant ESI your client has (I am still astounded by the Phoenix Four opinion on that issue).  I wish you luck because your comment “Now that you have asked your client to preserve it you have obligated your client to produce it when asked” appears to ignore the caselaw almost everywhere that says your client has the duty to preserve relevant evidence as soon as he or she reasonably anticipates litigation.

By GB on 2013 07 16, 2:18 pm CDT

The importance of the photos, from the perspective of the defense, had to do with the representation being made by Plaintiff/widower about how awful his life was after the wrongful death of his wife.  It was thought probative on the measure of damages.

By Cuellar on 2013 07 16, 4:14 pm CDT

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