Ethics of Advising Clients to Make Social Networks Private

Once upon a time, a legal ethics professor told a great story on the first day of class. As a young lawyer, he represented a woman in a personal injury case who had suffered a serious injury as a result of a car accident. At trial, she hobbled to the witness stand on crutches. She testified, tearfully, about the great pain she endured each day from walking even the shortest of distances. She testified how the accident had truly changed her life. After less than 30 minutes on the stand, the jury was practically in tears. The professor left the courthouse that day confident that when his client finished her testimony on the following day, victory would be assured.

The next morning, before appearing in court, the professor went to exercise at the Santa Monica stairs off Adelaide drive. And of course, he arrived to find his client there. Running. Smiling. Without crutches. Happy as a clam. Maybe even thinking about the perjurious testimony she would give later that morning with the professor's help. (This professor waited until the end of the semester to tell his class what he did. Don't worry, I will tell you at the end of this article.)

A similar (although far less dramatic) ethical problem has arisen with the advent of social networking sites like Facebook and MySpace. The question is: What do you do if you discover something potentially harmful to your case on the public portion of your client's social networking web page? Can you advise your client to change his or her privacy settings to make that information invisible to the public?

The genesis for this question comes from Romano v. Steelcase Inc.. Although the case has not yet been decided, a few weeks ago the court ordered that the defendant be given access to "plaintiff's current and historical Facebook and MySpace pages and accounts, including all deleted pages and related information upon the grounds that plaintiff has placed certain information on these social networking sites which are believed to be inconsistent with her claims in this action concerning the extent and nature of her injuries, especially her claims for loss of enjoyment of life."

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Source: law.com
By: Dan Nabel