[Ed. Note: After our popular post about the legal issues surroundingThe Social Network ran last month, we were flooded — flooded, I say! — with requests from our readers for follow-up. “Your analysis of the legal questions raised by the Facebook movie was brilliant, incisive, and hilarious!” raved one highly-representative e-mailer. “But can’t you share the same kind of sage wisdom about legal issues surrounding Facebook itself?” Okay, that never happened. But Aaron Moss’s post did get us thinking about all the funny little legal quirks that have emerged in the post-Facebook world, so we figured maybe, just maybe, somebody wanted to write that email above but was just too shy to pull the trigger. Don’t worry, Nonexistent Mystery Reader, we’ve got you covered! Today, Dan Nabel examines ethical issues lawyers must face when dealing with the role of Facebook and other social media in their own cases. Next Monday, Rachel Wilkes will educate the non-lawyers about what they should keep in mind for themselves when logging onto Facebook for the seventeenth time of the day.]

Once upon a time, a legal ethics professor told a great story on the first day of class. As a young lawyer, he represented a woman in a personal injury case who had suffered a serious injury as a result of a car accident. At trial, she hobbled to the witness stand on crutches. She testified, tearfully, about the great pain she endured each day from walking even the shortest of distances. She testified how the accident had truly changed her life. After less than thirty minutes on the stand, the jury was practically in tears. The professor left the court house that day confident that when his client finished her testimony on the following day, victory would be assured.

But before appearing in court the next morning, the professor went to exercise at the Santa Monica stairs off Adelaide drive. And of course, he arrived to find his client there. Running. Smiling. Without crutches. Happy as a clam. Maybe even thinking about the perjurious testimony she would give later that morning with the professor’s help.

(This professor waited until the end of the semester to tell his class what he did. Don’t worry, I will tell you at the end of this article).

A similar (although far less dramatic) ethical problem has arisen with the advent of social networking sites like Facebook and MySpace. The question is: what do you do if you discover something potentially harmful to your case on the public portion of your client’s social networking webpage? Can you advise your client to change his or her privacy settings to make that information invisible to the public?

The genesis for my question comes from Romano v. Steelcase, Inc. Although the case has not yet been decided, a few weeks ago the court ordered that the defendant be given access to:

Plaintiff’s current and historical Facebook and MySpace pages and accounts, including all deleted pages and related information upon the grounds that Plaintiff has placed certain information on these social networking sites which are believed to be inconsistent with her claims in this action concerning the extent and nature of her injuries, especially her claims for loss of enjoyment of life.

Why, might you ask, did the court issue such an order? More specifically, the court found:

…it appears that Plaintiff’s public profile page on Facebook shows her smiling happily in a photograph outside the confines of her home despite her claim that she has sustained permanent injuries and is largely confined to her house and bed. In light of the fact that the public portions of Plaintiff’s social networking sites contain material that is contrary to her claims and deposition testimony, there is a reasonable likelihood that the private portions of her sites may contain further evidence such as information with regard to her activities and enjoyment of life, all of which are material and relevant to the defense of this action.

There is little question that social networking has already begun to have a visible impact on the workings of the judicial system. In 2008, a defendant charged in a drunk driving crash that seriously injured another driver was sentence to two years in prison after prosecutors used photos of the defendant’s Halloween costume — a orange jumpsuit labeled “jail bird” — to paint the defendant as “an unrepentant partier who lived it up while his victim recovered in the hospital.” And Santa Clara University School of Law Professor Eric Goldman, who has “repeatedly blogged about plaintiffs who tell one story in court only to have that story undone by their postings to social networking sites,” cites to the colorful example of the 2010 case ofEmbry v. State:

The State called Miki to testify at trial. On cross-examination, the defense questioned her about a number of derogatory statements she had posted about Embry on her MySpace blog prior to the incident in question:BY [DEFENSE]: . . . Prior to Au- April 22nd, 2008 had you ever expressed or communicated in any way that you wanted your ex to die a slow painful death?

A: I believe you’re referring to my “My Space” . . .

Q: I’m not — I — no, I’m not referring to anything. I’m just asking you a simple question: if you’d ever expressed or communicated in any way that you wanted your ex-husband, Mr. Embry, to die a slow painful death?

A: I see it right there on your desk.

Q: Okay.

A: It’s my “My Space” blog.

Q: Okay, did you say it?

A: I typed it.

Q: Okay. But the answer is, did you say it? I mean is that your communication.

A: I typed it.

Q: Okay. And did you ever express um, or communicate in any way that you wanted to be present and dance the cha-cha around his slow painful death?

A: It’s all there in the blog.

Q: Okay. The answer’s a simple yes or no. You said it; you’ve communicated it some way, did you?

A: If you want to put that blog there, I. . .

Q: I’m just asking you a simple question.

BY COURT: Ma’am, will ya just answer the question yes or no?

A: Yes, I did.

Q: Did you ever refer to Mr. Embry or communicate in any way that he was a worthless bag of monkey shit?

A: Yes.

Q: Did you ever refer to him as dog piss?

A: Yes.

Q: Did you ever refer to him as a worm puke stale crusty moldy inhuman horrible human oxygen sucking moron?

A: Yes.

Q: Did you ever communicate the desire, that because he’s older and more stupid than you, he will die way before you do?

A: I believe I said please assure me that it was possible that he would pass before me.

The Ethical Question

Clients have a duty to preserve potentially relevant evidence as soon as they know of a pending or potential claim. Likewise, attorneys have a corresponding duty to effectively communicate to clients their discovery obligations so that all relevant information is retained. This raises the question: can you advise your client to change his or her privacy settings so that his or her Facebook postings are no longer visible to the public?

To my knowledge, no court has ever written about this issue. But of course, personal injury lawyers have. According to New York lawyers Robert and Gail Kelner:

“Plaintiffs in personal injury actions are generally made aware of defendants’ use of traditional videotaped surveillance techniques and warned that they may be on ‘candid camera’ when they leave their homes. The potential incursion into their privacy by unwanted ‘e-peepers’ is becoming an ever increasing issue. Clientsmust be strongly cautioned, as they would with respect to videotaped surveillance, that not only their public sites may be viewed by defendants but even their private restricted sites may be invaded.” (Emphasis added)

Robert S. Kelner and Gail S. Kelner, New York Law Journal Vol. 242, 2009, Social Networking Sites and Personal Injury Litigation, NYLJ 3, (col. 1).

(Those “e-peepers” really grind my gears.)

Given the Kelners’ observations, it is easy to think of scenarios in which it is clearly ethical to advise your client to change his or her privacy settings. For example, imagine your client is an aspiring musician being sued for copyright infringement. The claim is that your client stole a riff from another musician’s hit song. Your client can conclusively prove that his riff is different because it was copied directly from a public domain Mozart concerto. Nevertheless, your client has covered the works of the competing musician numerous times. In fact, he has posted a few videos of those covers on his public Facebook page. One of the videos even shows your client playing the competing musician’s hit song. You conclude the videos make your client look guilty despite concrete knowledge that your client is innocent. In this case it seems ethical to advise your client to make those videos private because they are misleading (understanding that, under Romano, that information may still be discoverable even after it is designated private).

But is it smart?

What if the other side finds out? Won’t the other side accuse your client of trying hide relevant information? How will your client testify in response? (“Your Honor, I was just trying to hide from the e-peepers!”) Of course, the tougher question is: what do you do if you find out that your client does not simply have some bad facts, but is actually lying to you about the facts?

Which brings us back to the professor’s story…

On the last day of class the professor informed everyone that he had “slightly” modified the facts of his story. In reality, he hadn’t seen his client at the Santa Monica stairs until after the case was already over. Much to the chagrin of the students, he therefore had not had any serious ethical decision to make. Nevertheless, he felt extraordinarily guilty for what he had been a part of. His client won a huge money judgment and no appeal was made. Accordingly, he immediately thereafter quit practicing law and became an ethics professor.

This article first appeared in the October 26, 2010 issue of ALM’s The Recorder.