It is the sort of scenario bound to raise the blood pressure or bring heartburn to any litigator. Your client’s Facebook page features statements or photos that undermine or even outright contradict her claims or defenses in the litigation. Other postings may not even be particularly relevant to the case, but they certainly don’t portray the client in a flattering light. But just how far can a lawyer go in advising clients about “cleaning up” their Facebook page or other online presence?
The uncertainties surrounding the answer to that question have left some attorneys stumbling in an ethical minefield. In one Virginia wrongful-death case, Allied Concrete v. Lester, 736 S.E.2d 699 (Va. 2013), the plaintiff’s attorney learned of photos on the surviving husband’s Facebook page that depicted him drinking, surrounded by women, and wearing a T-shirt that read “I [heart] hot moms”—hardly the portrait of a grieving widower! The attorney emailed his paralegal, instructing her to have the client “clean up” his Facebook page because “[w]e do not want any blow-ups of this stuff at trial.”
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