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As in most developing areas of the law, this article Representing Clients In The Age Of Social Media Is Not As Easy As You Think the lesson in the area of social media and discovery is for attorneys to proceed with caution when advising their clients. The old rules of conduct do not necessarily apply to our new social media reality.
Without much thought, people publicly post detailed personal information and photographs documenting their whereabouts and moment-to-moment activities. In the litigation context, the increase in use of social media has created enormous amounts of discovery material. Most attorneys are well aware that the personal items and pictures posted on people’s social pages are ripe areas to learn about an opposing party, opposing counsel, potential witnesses, jurors and judges. Law enforcement agencies too — like the NYPD, which created a social media unit in 2011 — are mining social media for information concerning past and prospective criminal activity.
Most laws and rules governing how attorneys may advise their clients concerning the handling of their personal information were developed in the pre-Facebook age. But, the differences between social media and other forms of discoverable material have altered the legality of attorneys’ actions both substantively and ethically in ways that many attorneys would not expect and in ways that conflict with their experience and instincts.
One problematic – and largely unanswered – question is what advice an attorney can legally and ethically give to a client who has posted potentially incriminating or discoverable material on a social media website?
Good comments. I do not think an attorney can legally and ethically advise client to delete postings that might be potentially incriminating or discoverable material on a social media website, especially if anticipation of litigation.