In my last blog post (Facebook, Instagram, and Social Media’s Impact on Personal Injury Claims), I talk about how unreasonable it is for a defense lawyer to be able to take one picture from a plaintiff’s social media page and, in good conscious, argue that this picture accurately depicts the other 23.9 hours of that person’s day. I also discuss a Florida 4th DCA personal injury opinion that allows the power of the subpoena to access social-media photos that were meant for one’s friends only. Essentially, the 4th DCA believes that there is no expectation of privacy when Facebook, Instagram or any other social-media outlet is concerned. I also mentioned how the plaintiff, in that 4thDCA case (Nucci v. Target Corp), had taken down photos from Facebook after a request for those photos were made by the defense counsel.
The Florida Bar published a Proposed Ethics Advisory Opinion (14-1) on January 23, 2015. It addresses the issue of whether a lawyer may advise their client, even before filing a law suit, to clean up their social media pages by removing posts or photos related to the matter at issue in the litigation; removing those posts or photos that are not related to the issue at hand (but may nonetheless be embarrassing); alter their privacy settings or take down the page entirely.
Florida Bar Rule 4-3.4(a) essentially says that a lawyer may not obstruct another party’s access to evidence that they should know is reasonably related to the proceeding. Justice is obstructed if relevant evidence is concealed, destroyed or altered.
To that end, the Florida Bar seems to be of the opinion that a lawyer MAY advise a client to change their social-media privacy settings so they are not publicly accessible (again, don’t be fooled – investigators can easily obtain access to the photos you mark as “private???). In addition a lawyer MAY advise their client to remove information, even if its relevant to the foreseeable proceeding, from social media outlets such as Facebook, Instagram, Twitter, and Pinterest , SO LONG AS an appropriate record of the information or data is preserved and doesn’t violate any other evidentiary laws.
Essentially, you can take down your social media photos and posts, as long as you back up (the ones likely to be related to the litigation) properly. A lawyer from the defense will then, likely attempt to view that backed-up data via subpoena and the plaintiff’s personal injury lawyer will have to fight over its relevancy and a judge will decide from there.
I always tell my clients to avoid social-media as much as possible while their case is pending. Since personal injury claims, even before litigation is initiated, can take months to resolve (potentially years after a personal injury suit is filed), I understand that this may be too strict of an instruction to follow. At the very least, I explain to my clients that they should use the highest possible privacy settings and to not let that lull them into a false sense of security. Treat facebook, Instagram, twitter, pinterest, and google+ as if everyone had access to it and think about the potential repercussions of the pictures you share following an accident Even better, treat it like each post were tantamount to putting up a billboard in Times Square – you probably wouldn’t care if millions of people knew what you ate for dinner or that you wished everyone a happy holiday…but if millions of people were watching your Instagram feed on an eight-story tall screen that was as wide as a football field, I bet you would be a bit more careful about what you put out for the world to view.
As an ethical personal injury lawyer, I will not ask you to destroy that photo you took a few weeks after you accident, having a few minutes of fun in your otherwise painful day. If it’s already in cyberspace, you can take it down (as long as its backed up and preserved) and we’ll deal with it…very few personal-injury cases are perfect. But, it would be a great help to me if you could avoid posting it the first place.