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Social Media Ethics: Part I

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Although it began as a tragic personal injury case where a concrete truck crossed the center line and tipped over the car of a newly married 25-year-old woman, the case effectively ended the career of Mathew Murray, a Virginia lawyer and managing partner in one of the largest personal injury firms in Virginia.  So what went so wrong to end the career of this experienced and prominent attorney?

The case, Isaiah Lester, Individually and as Administrator of the Estate of Jessica Lynn Scott Lester v. Allied Concrete Company, et al., involved a personal injury action where Mr. Murray represented Isaiah Lester, the husband of the woman who died in the crash with the Allied Concrete truck.  Mr. Murray’s problems began after he received a discovery request from Allied Concrete, the defendant. Through an email from his paralegal, Mr. Murray instructed Mr. Lester to “clean up” his Facebook page after Allied Concrete’s attorneys sought Facebook screenshots, pictures, profile, message board, status updates and messages.  Following his lawyer’s advice, Mr. Lester deleted sixteen photos including one where he wore a T-shirt exclaiming “I (heart) hot moms” while holding a beer can. Mr. Murray also instructed Mr. Lester to deactivate his Facebook accounts so that he could respond to the discovery request that no such account existed.

Ultimately, the judge in the personal injury case ordered Mr. Murray and Mr. Lester to pay $722,000 in sanctions where the judge found an “extensive pattern of deceptive and obstructionist conduct.”  Mr. Murray was further disciplined by the Virginia State Bar and received a five year suspension for violating ethics rules that govern candor toward the tribunal, fairness to opposing party and counsel, and misconduct.  There are also reports that Mr. Murray resigned from the firm and is retiring from practicing law.

There is no doubt social media evidence will become more prevalent in the future. To provide competent representation, lawyers likely already have a duty to address social media evidence as it can be a powerful investigative tool.  However, social media can also be a minefield of ethical issues.  As the Lester case illustrates, lawyers need to be cognizant of how they counsel their clients regarding social media evidence.

Clearly, the advice to turn off or deactivate Facebook, so that the the lawyer could deny the existence of such an account in discovery violates Rule 3.3(a)(1) (making a false statement to the tribunal) and Rule 8.4(c) (engaging in conduct involving dishonesty or misrepresentation).  But even a casual statement to a client to “clean up” their social media accounts or profiles, whether discovery is pending or not, is insufficient direction to the client.  A lawyer must anticipate when social media will be relevant in the client’s case, and must be careful not to suggest that the client do anything to their social media account that would amount to spoliation of evidence.

In the firm’s next blog, Deanna will address social media discovery, highlighting the new State Bar proposed opinion on this issue, and discuss other social media ethical questions including: (1) May an attorney view the publicly available portions of social media to gain information; (2) May an attorney “friend” an individual to gain access to non-public information; (3) May the attorney direct a third party to gain access on their behalf- whose name the non-client may not recognize-by requesting the third party “friend” the individual.