|Message From The PresidentThe Florida Bar Professional Ethics Committee on January 23, 2015 issued proposed advisory Opinion 14-1 concerning whether to advise clients to “clean up” their social media pages (read delete) before litigation is commenced. Following a ruling from the Fourth DCA in the case, Nucci v. Target Corp., So. 3d 40 FLW D166a (Fla. 4th DCA 2015), it is clear, at least for now, that our clients’ social media is open to discovery. Our firm is being flooded with discovery requests from insurance defense law firms, who now have been given legal support for their discovery of all sorts of our clients’ postings.One of our members, Jim Fallace, mentioned at our Inn of Court meeting, the exposure attorneys have in Federal Court litigation, if their clients destroy, deface or alter electronic records. It appears that our state courts and The Florida Bar are tracking some of the Federal Court rulings.We have posted on the Brevard County Bar Association’s website, the entire proposed Opinion. If accepted, attorneys involved in advising clients, before or after litigation is commenced, must take great care in advising clients not to alter or delete electronic postings, emails, tweets, texts and a lot of other stuff I am too out of date to define or describe.
The State and Federal decisions not only impact litigation with potential spoliation issues, but the decision and proposed Opinion also creates potential Florida Bar prosecution issues. I am amazed, and not in a good way, at what our clients both send and receive electronically. Photographs, emails and text messages that would curl my hair, if I had much left, now are a major component of many trials. Who needs to hire a private investigator when people post their minute-by-minute locations and activities on a social media site? I tell clients not to post or send anything that they do not want a judge and/or jury to see. My advice is accepted only by some of our clients, some of the time.
We may not be able to prevent out clients’ compulsion to make our cases more difficult, but we can know what our obligations are and protect ourselves by documenting that we have told our clients what they can and cannot do. There are big brown bears in those woods. Be Careful.