Last September, John Mogan and Ashley Duboe robbed a bank, as one does when young and in love. The couple then posted photos of them- selves cavorting with wads of stolen cash. They were promptly arrested, of course. Or take young Floridian Steven Mulhall, who stole the nameplate from the Honorable Michael J. Orlando’s door, then posted a photo of him posing with the sign on his girlfriend’s Facebook
page. He was arrested, too.
More prosaically, countless men and women post pictures
of themselves with guns on Facebook, Myspace (yes, still), and
whatever else kids are using these days, even though some of
those same men and women are prohibited from possessing
said guns by reason of a prior conviction. Some of them get
None of these tales should surprise us. As a fish takes to water, as a new foal stands and gallops within an hour, humanity
had only to behold the Internet before discovering an inherent
and astonishing capacity for doing dumb things online. We are
born to it. As bystanders, we may shake our heads at those who
exercise this birthright. But as lawyers, sometimes we must
So your client has posted something unwise on Facebook.
Your life will be easier if this post does not become government’s Exhibit A. Can you suggest taking it down? Distressingly, the answer is unclear.
Social media is still new legal territory, and there is little
body of law on the subject. RPC 3. 4(a) prohibits a lawyer from
unlawfully obstruct[ing] another party’s access to evi-
dence or unlawfully alter, destroy[ing] or conceal[ing] a
document or other material having potential evidentiary
value. A lawyer shall not counsel or assist another person
to do any such act.
Ethics opinions have begun to converge around the propo-
sition that, RPC 3. 4(a) notwithstanding, lawyers can advise
their clients to shield potentially damaging social media posts.
A 2013 New York County Lawyer’s Association ethics opinion
held a lawyer could counsel a client to remove social media
posts. 1 A 2014 Philadelphia Bar Association opinion reached
a slightly different conclusion, holding that a lawyer could not
counsel removing a post, but could advise a client to shield it
from public view with privacy settings. 2 And the 2014 Social
Media Ethics Guidelines of the New York State Bar Associa-
tion’s Commercial and Federal Litigation Section provides:
A lawyer may advise a client as to what content may be
maintained or made private on her social media account, as
well as to what content may be “taken down” or removed,
whether posted by the client or someone else, as long as
there is no violation of common law or any statute, rule, or
regulation relating to the preservation of information. 3
But before you advise a client to take down a damaging
post, two notes of caution.
First, each of the opinions mentioned above focused on civil
litigation, not criminal prosecution, and the duty to preserve
discoverable material under the civil rules. If a post is taken
down but its substance preserved, the preservation duty is satisfied. However, the question has not yet been addressed in the
criminal law context.
Second, the cited opinions conclude a lawyer may ethically
advise a client to take down a post, that is, do so in compliance with the rules of professional conduct, but do not address
whether other substantive laws dealing with destroying or concealing evidence would prohibit the conduct. 4
Two such laws are 18 U.S.C. §§ 1512 or 1519. Both statutes
prohibit not only destroying records, but also concealing records. Section 1512 prohibits:
by Isham Reavis