Family lawyers are increasingly using postings on Facebook, Instagram, Twitter and other social media in their domestic litigation. The most common intersection is with custody, but damaging postings can also impact a divorce, support or a PFA.
In July 2014, the Philadelphia Bar Association Professional Guidance Committee issued an opinion that a lawyer may advise a client to change the privacy settings on Facebook (for example) but "may not instruct or permit the client to delete/destroy a relevant photo, link, text, or other content, so that it no longer exists". Furthermore, the opinion directs the lawyer to take steps to preserve social networking evidence (such as a copy of a photograph, link or other content") about which the lawyer is aware and which has not previously been produced,
This Philadelphia opinion was then adopted as a 2014 "Formal Opinion" by the Pennsylvania Bar Association. The PBA noted that "a competent lawyer should advise clients about the content that they post publicly online and how it can affect a case or other legal dispute". Being a statewide opinion, it has bearing on Pittsburgh and Allegheny County family law attorneys. However, it is not a "law" and is not a "Rule of Civil Procedure".
The Formal Opinion noted that there is nothing wrong with changing a client's profile to "private" or with instructing a client to delete damaging information, provided the conduct does not constitute "spoliation" (i.e. improper destruction) of evidence.
So, a good family law attorney should:
1. Be aware of the benefits and risks of social media for his client (and for the other party);
2. Upon learning of damaging postings, properly advise her/his client to reduce the potential damage by changing privacy setting or deleting the information (so long as a copy is retained for future discovery).
3. Not advise the client to simply delete evidence or to lie about the postings (a Virginia attorney received a 5 year bar suspension for just that).
We have always believed that a good reputation for honesty to the court is one of the strongest assets an attorney can provide for a client. Combined with good counsel to minimize risks, you have a Pittsburgh counsel who will properly guide his/her client in this emerging field.
