Ethical Considerations for Clients
Ethics Corner Article
Dear Ethics Committee,
My client was recently charged with a crime. The alleged victim, who is a “friend” with my client and her family on social media, is posting information about the case, some of which my client claims is not true. My client feels a need to respond. What should I advise my client to do?
Your client should not post a response. Your client may block or “unfriend” the alleged victim so that the client does not need to view the offensive posts. But you should advise the client not to discuss the case, including on social media.
Rule 1.1 of the New Hampshire Rules of Professional Conduct mandates that a lawyer provide competent representation to a client. The ABA Comment to the Model Rules and the New Hampshire Ethics Committee Comment both state that this rule requires a lawyer “to keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” Ethics opinions from other jurisdictions have concluded that, under Rule 1.1, advising a client about social media postings is necessary when the client’s postings could be relevant and material to the client’s legal matter: “[C]ompetent representation includes advising the client of the legal ramifications of existing postings, future postings, and third party comments.” N.C. St. Bar, Formal Ethics Op. 2014-5 (2015). It is common practice for a lawyer to advise a client not to discuss the client’s case with others. Similarly, a lawyer should advise a client not to discuss the case on social media, and that any comments or posts may be used in court proceedings.
While the client should not comment about the case on social media or be baited into responding to posts by others, the client can change her privacy settings or restrict who has access to her own social media presence. This is not to say that information may be deleted or destroyed. A lawyer may not counsel a client or assist a client to engage in conduct the lawyer knows is criminal or fraudulent. NHRPC Rule 1.2(d). Additionally, a lawyer may neither unlawfully obstruct another party’s access to evidence nor unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value, nor “counsel or assist another person to do any such act.” NHRPC Rule 3.4(a). Altering or deleting information from social media that is relevant to a case may be considered destroying or falsifying evidence. See RSA 641:6 (Falsifying Physical Evidence).
In more complex criminal cases and in the civil context, spoliation of evidence similarly runs afoul of Rule 3.4, and may also violate court rules relating to discovery. Lawyers must be familiar with the law and rule governing electronically stored information (ESI), and must advise clients about preserving material with potential evidentiary value. For more on this topic and how it may affect civil practice, see the recent Ethics Corner article “Text Messages and Spoliation.”
Finally, the lawyer should advise the client that, if she responds to a post by an alleged victim, and the court has prohibited contact or communication between the defendant and that person, any post or response may be a violation of that court order. This may be true even if the client responds generally and is not directly contacting the alleged victim. See State v. Craig, 167 N.H. 361 (2015) (affirming the defendant’s conviction for Stalking (RSA 633:3-a) and finding that the defendant’s Facebook posts, posted publicly online and without sending the posts directly to the victim, violated a no-contact order).
In all cases, a lawyer should have a conversation with the client at the beginning of the representation to advise the client about the risks associated with social media, and the need to refrain from posting information about an on-going case.
For more information on this topic generally, see Ethics Committee Advisory Opinion #2012-13/05.
This article is one in a series of Ethics Corner articles on Social Media and Ethics and was submitted for publication to the NHBA Board of Governors at its December 2, 2019.
The Ethics Committee provides general guidance on the New Hampshire Rules of Professional Conduct and publishes brief commentaries in the New Hampshire Bar News. New Hampshire lawyers may contact the Committee for confidential and informal guidance on their own prospective conduct or to suggest topics for Ethics Corner commentaries by emailing Robine E Knippers.