Ethics and Criminal Practice

This tenet is echoed in the ABA Criminal Justice Standards: “counsel should not knowingly make a false statement of fact or law or offer false evidence, to a court, lawyer, witnesses, or third party.” ABA Criminal Justice Standards for the Defense Function, 4th Ed., Standard 4-1.4(b); for the Prosecution Function, Standard 3-1.4(b) (ABA Standard). Indeed, to knowingly assert a false, material factual statement would constitute frivolous conduct, prohibited by New York Rule 3.1. And there is New York's catchall, Rule 8.4, which “applies to every aspect of a lawyer's life”: an attorney may not “engage in conduct involving dishonesty, fraud, deceit or misrepresentation” or conduct that is “prejudicial to the administration of justice.” Simon 8.4 (c) at 1855.

Does this mean an attorney must advise his or her clients to preserve their social media pages as is? Not at all. In Pennsylania, for example, a “competent lawyer should advise clients about the content they post publicly online and how it can affect a case or other legal dispute.” PA Op. at 6. As Philadelphia's Bar Association Professional Guidance Committee states it, a lawyer may “instruct a client to delete information that may be damaging from the client's page, but must take appropriate action to preserve the information in the event it should prove to be relevant and discoverable.” Phila. Op. at 5. Put another way by the New York County Lawyers' Association: “[P]rovided that such removal does not violate the substantive law regarding destruction or spoliation of evidence, there is no ethical bar to taking down' such material from social media publications, or prohibiting a client's attorney from advising the client to do so, particularly inasmuch as the substance of the posting is generally preserved in cyberspace or on the user's computer.” NY Op. at 3; see also Phila. Op. at 3; WV Op. at 9; FL Op. at *3; see also Social Media Ethics Guidelines adopted by the Commercial and Federal Litigation Section of the New York State Bar Association, Guideline 5A (NYSBA Guidelines).

Indeed, Comment 1 to New York's Rule 3.4 (Fairness to Opposing Party and Counsel) recognizes the constraints against destroying documents and information, but specifically acknowledges that our system is adversarial in nature; that it “contemplates that the evidence in a case is to be marshaled competitively by the contending parties.” New York's comment to Rule 4.1 (Truthfulness in Statements to Others) is unequivocal-although a lawyer may not “knowingly make a false statement of fact or law to a third person,” he simply has “no affirmative duty to inform an opposing party of relevant facts.” Rule 4.1; cf. ABA Rule 4.1; Rule 4.1, Comment 1; ABA Rule 4.1, Comment 1. And in the criminal arena, ABA Standard 4-1.4(b) reminds us that it is “not a false statement for defense counsel to suggest inferences that may reasonably be drawn from the evidence.”

The Obstruction Issue

Although substantive law is beyond the scope of this article, be cautioned that there is the risk that a client (or lawyer) can be charged with, or at least investigated for, obstruction of justice if documents or information are destroyed or falsified. The U.S. Supreme Court addressed obstruction of justice issues in United States v. Aguilar, 515 US 593, 599 (1995), and in Arthur Andersen v. United States, 544 US 696 (2005), in the context of Title 18, USC ' 1503 and Title 18, USC ' 1512, respectively, and concluded that there must be a nexus between the defendant's acts and an intent to influence judicial or grand jury proceedings. But, 18 USC ' 1519 engrafts no such requirement. Indeed, the Senate Report accompanying the bill tells us that the “statute is specifically meant not to include any technical requirement, which some courts have read into other obstruction of justice statutes, to tie the obstructive conduct to a pending or imminent proceeding or matter ' It is also meant to do away with the distinctions, which some courts have read into obstruction statutes, between court proceedings, investigations, regulatory or administrative proceedings (whether formal or not), and less formal government inquiries, regardless of their title. Destroying or falsifying documents to obstruct any of these types of matters or investigations, which in fact are proven to be within the jurisdiction of any federal agency are covered by this statute.” Senate report, as quoted in United States v. Gray , 642 F3d 371, 377 (2d Cir., 2011).

In United States v. Gray, corrections officers filed false reports when an inmate housed at a private correctional facility was beaten by one of them. As the Office of the Inspector General did not commence an investigation until months later, and the false report was made to the private company that owned the facility, the defendants claimed that they could not be guilty of obstruction, as there was no investigation by a federal agency at the time they made their statements, nor was one reasonably anticipated. The U.S. Court of Appeals for the Second Circuit stated that, by the “plain terms of Section 1519, knowledge of a pending federal investigation or proceeding is not an element of the obstruction crime.” Indeed, the Gray court tells us, the statute “does not require the existence or likelihood of a federal investigation” and there is no requirement that an investigation be underway at the time of a defendant's action.

It is enough that a defendant engaged in obstructive conduct “with the intent to impede, obstruct, or influence the investigation or proper administration” of a matter within the jurisdiction of any department or agency of the United States. Gray, 642 F3d 371, 376, quoting 18 USC Section 1519. In other words, when advising a client to alter content, tread lightly.

Content and Access

So, a lawyer can advise a client to remove content, provided substantive law is complied with and no false statements are made. But can a lawyer advise a client to add content, perhaps to make the client more … shall we say … sympathetic? In a word ' yes. In New York, lawyers can ethically tell a client to post new, favorable content on social media, as long as the content is not false. NYSBA Guidelines, at 5B; NY Op. at 4. The NYCLA ethics opinion tells us that there is nothing improper about a lawyer explaining to his client the “significance and implications of social media posts,” or how the posts ' and their factual context ' may be received by others. If the lawyer believes the client has posted something that is not true, however, and if the client does not negate the lawyer's conclusion, counsel in general cannot offer or use those false posts in any court proceeding. NY Op. at 4; WV Op. at p. 9; PA Op. at p. 6; Rule 3.3; Rule 4.1; ABA Rule 3.3; ABA Rule 4.1.

What about enhancing a client's security settings, making it more difficult for the outside world to easily access the client's information, because lawyers are not ethically able to gain access to the secured data absent court order or consent? See, e.g., NY Op. at 2 (“an attorney's ability to access social media information is not unlimited.”). According at least to the Philadelphia bar ethics opinion, a “lawyer may instruct a client to make information on the social media page 'private,' 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.” Or, as stated there, “[w]hile it may be more cumbersome for an opposing party to access the information, changing a client's settings does not violate” the rules. Phila. Op. at 1, 4. Be reminded, however, that if you or your client are asked whether changes were made to a social media site, and a response is required, you must respond truthfully. See, e.g., NY Op. At 4; WV Op. At 9; Phila. Op. At 3.

What about expanding access? Sounds a little odd, but let's return to our scenario, only change it a little. Your client's social media had all the photos discussed last month and more, but access was initially restricted only to certain people. You advise the client to remove the photos, post several photos of himself and his family, and expand access to the public so that anyone can now see his posts (and presumably conclude that he is the consummate family man). Have you violated any ethical obligation? Not according to the rules in place in New York (or under the ethics opinions of New York, Philadelphia or West Virginia), provided you comply with substantive law and have not lied (or allowed your client to lie) about changes to the social media page.

Conclusion

The World Wide Web became publicly available in August 1991. Martin Bryant, “20 Years Ago Today, The World Wide Web Opened to the Public,” Aug. 6, 2011, TNW News. To put it in perspective, there are high school (and maybe even college) graduates who may have never opened a hard-copy encyclopedia or dictionary. Facebook became available to the public almost 10 years ago. It cannot be denied that the Internet, and social media, have changed the way we communicate and have changed the way we are presented to others. Is there anyone, really, who doesn't look up adversaries, clients, and potential witnesses?

Social media has become a powerful tool for law enforcement. But manipulating a client's social media persona (really, the client's public persona) can also be a powerful tool for targets or defendants, one that an attorney may want to explore ' provided he does so within the bounds of his ethical, or legal, obligations.

Joel Cohen is of counsel and James L. Bernard is a partner at Stroock & Stroock & Lavan. They co-teach professional responsibility at Fordham Law School. Dale J. Degenshein, special counsel at Stroock, assisted in the preparation of this article. This article also appeared in the New York Law Journal, an ALM sibling publication of this newsletter.