NJSBA Family Law Section

Lawyer agrees to five-year suspension for advising client to clean up his Facebook page

Good morning colleagues!

The attached article discusses a Virginia case where an attorney was suspended for five years for instructing a paralegal to tell his client to "clean up his Facebook page" after opposing lawyers sought screen shots and other information from his page.  I've attached a link to the article above, which goes into more detail. According to the suspension order, the attorney violated ethical rules that "govern candor toward the tribunal, fairness to opposing party and counsel, and misconduct." 

As I read it, the attorney in this case effectively advised his client to destroy discovery.  I also recognize that this was not a family law/matrimonial case.  However, I'm curious as to how my fellow family law colleagues would extend this rational to our cases.  I frequently advise clients to be careful of what they post on Facebook, considering most people aren't diligent with their security settings.  Even if their profiles are "private", they've still permitted family and friends to have access, who sometimes supply the information/photos to the other spouse.  In several of my own cases, I've used the other spouse's Facebook posts/photos as exhibits to a motion or at trial.  However, never would I advise a client to destroy or "clean up" evidence. 

As I see it, it's safe to tell a client to "be careful", but I don't want to be responsible for a client using that advice to destroy discovery.

I would be interested to know your thoughts.

-------------------------------------------
Melissa M. Ruvolo, Esq.
Ruvolo Law Group, LLC
55 Madison Ave., Suite 360
Morristown, NJ 07960
Phone: (973)993-9960
Fax: (973)993-9961
[email protected]
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My retainer agreement advises the client not to post on social media pages during the pendency of their case. That is permissible advice.

It is improper to advise a client to change anything on his or her "wall" that has already been posted.

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Robert Goldstein Esq.
Manalapan NJ
(732)972-1600

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Original Message:
Sent: 08-09-2013 10:29
From: Melissa Ruvolo
Subject: Advising a Client about Facebook Usage

Lawyer agrees to five-year suspension for advising client to clean up his Facebook page

Good morning colleagues!

The attached article discusses a Virginia case where an attorney was suspended for five years for instructing a paralegal to tell his client to "clean up his Facebook page" after opposing lawyers sought screen shots and other information from his page.  I've attached a link to the article above, which goes into more detail. According to the suspension order, the attorney violated ethical rules that "govern candor toward the tribunal, fairness to opposing party and counsel, and misconduct." 

As I read it, the attorney in this case effectively advised his client to destroy discovery.  I also recognize that this was not a family law/matrimonial case.  However, I'm curious as to how my fellow family law colleagues would extend this rational to our cases.  I frequently advise clients to be careful of what they post on Facebook, considering most people aren't diligent with their security settings.  Even if their profiles are "private", they've still permitted family and friends to have access, who sometimes supply the information/photos to the other spouse.  In several of my own cases, I've used the other spouse's Facebook posts/photos as exhibits to a motion or at trial.  However, never would I advise a client to destroy or "clean up" evidence. 

As I see it, it's safe to tell a client to "be careful", but I don't want to be responsible for a client using that advice to destroy discovery.

I would be interested to know your thoughts.

-------------------------------------------
Melissa M. Ruvolo, Esq.
Ruvolo Law Group, LLC
55 Madison Ave., Suite 360
Morristown, NJ 07960
Phone: (973)993-9960
Fax: (973)993-9961
[email protected]
-------------------------------------------

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Emily Gosnell Esq
East Windsor NJ
(609) 371-3820

-------------------------------------------

I agree with Bob, certainly.  But I do think that a client may have a legitimate reason to delete his facebook or other social media account during litigation.  All the social media sites can be brutal sources of harassment from friends and relatives of the other side during nasty custody litigation.  If the client is going to drop off facebook or other social media, they shold keep a record of their timeline and wall to avoid the charge of destroying discovery or evidence.




Original Message:
Sent: 08-09-2013 13:05
From: Robert Goldstein
Subject: Advising a Client about Facebook Usage

My retainer agreement advises the client not to post on social media pages during the pendency of their case. That is permissible advice.

It is improper to advise a client to change anything on his or her "wall" that has already been posted.

-------------------------------------------
Robert Goldstein Esq.
Manalapan NJ
(732)972-1600

-------------------------------------------






Original Message:
Sent: 08-09-2013 10:29
From: Melissa Ruvolo
Subject: Advising a Client about Facebook Usage

Lawyer agrees to five-year suspension for advising client to clean up his Facebook page

Good morning colleagues!

The attached article discusses a Virginia case where an attorney was suspended for five years for instructing a paralegal to tell his client to "clean up his Facebook page" after opposing lawyers sought screen shots and other information from his page.  I've attached a link to the article above, which goes into more detail. According to the suspension order, the attorney violated ethical rules that "govern candor toward the tribunal, fairness to opposing party and counsel, and misconduct." 

As I read it, the attorney in this case effectively advised his client to destroy discovery.  I also recognize that this was not a family law/matrimonial case.  However, I'm curious as to how my fellow family law colleagues would extend this rational to our cases.  I frequently advise clients to be careful of what they post on Facebook, considering most people aren't diligent with their security settings.  Even if their profiles are "private", they've still permitted family and friends to have access, who sometimes supply the information/photos to the other spouse.  In several of my own cases, I've used the other spouse's Facebook posts/photos as exhibits to a motion or at trial.  However, never would I advise a client to destroy or "clean up" evidence. 

As I see it, it's safe to tell a client to "be careful", but I don't want to be responsible for a client using that advice to destroy discovery.

I would be interested to know your thoughts.

-------------------------------------------
Melissa M. Ruvolo, Esq.
Ruvolo Law Group, LLC
55 Madison Ave., Suite 360
Morristown, NJ 07960
Phone: (973)993-9960
Fax: (973)993-9961
[email protected]
-------------------------------------------

Deleting the FB account may indeed be spoliation of evidence, but the person can deactivate the account (like putting it on hold) and can download a copy of all FB data. Better to do this to avoid potential sanctions.

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Leslie Farber Esq.
Montclair NJ
(973)509-8500

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Original Message:
Sent: 08-11-2013 12:33
From: Emily Gosnell
Subject: Advising a Client about Facebook Usage



-------------------------------------------
Emily Gosnell Esq
East Windsor NJ
(609) 371-3820

-------------------------------------------

I agree with Bob, certainly.  But I do think that a client may have a legitimate reason to delete his facebook or other social media account during litigation.  All the social media sites can be brutal sources of harassment from friends and relatives of the other side during nasty custody litigation.  If the client is going to drop off facebook or other social media, they shold keep a record of their timeline and wall to avoid the charge of destroying discovery or evidence.




Original Message:
Sent: 08-09-2013 13:05
From: Robert Goldstein
Subject: Advising a Client about Facebook Usage

My retainer agreement advises the client not to post on social media pages during the pendency of their case. That is permissible advice.

It is improper to advise a client to change anything on his or her "wall" that has already been posted.

-------------------------------------------
Robert Goldstein Esq.
Manalapan NJ
(732)972-1600

-------------------------------------------






Original Message:
Sent: 08-09-2013 10:29
From: Melissa Ruvolo
Subject: Advising a Client about Facebook Usage

Lawyer agrees to five-year suspension for advising client to clean up his Facebook page

Good morning colleagues!

The attached article discusses a Virginia case where an attorney was suspended for five years for instructing a paralegal to tell his client to "clean up his Facebook page" after opposing lawyers sought screen shots and other information from his page.  I've attached a link to the article above, which goes into more detail. According to the suspension order, the attorney violated ethical rules that "govern candor toward the tribunal, fairness to opposing party and counsel, and misconduct." 

As I read it, the attorney in this case effectively advised his client to destroy discovery.  I also recognize that this was not a family law/matrimonial case.  However, I'm curious as to how my fellow family law colleagues would extend this rational to our cases.  I frequently advise clients to be careful of what they post on Facebook, considering most people aren't diligent with their security settings.  Even if their profiles are "private", they've still permitted family and friends to have access, who sometimes supply the information/photos to the other spouse.  In several of my own cases, I've used the other spouse's Facebook posts/photos as exhibits to a motion or at trial.  However, never would I advise a client to destroy or "clean up" evidence. 

As I see it, it's safe to tell a client to "be careful", but I don't want to be responsible for a client using that advice to destroy discovery.

I would be interested to know your thoughts.

-------------------------------------------
Melissa M. Ruvolo, Esq.
Ruvolo Law Group, LLC
55 Madison Ave., Suite 360
Morristown, NJ 07960
Phone: (973)993-9960
Fax: (973)993-9961
[email protected]
-------------------------------------------

Yes.. but see:
[1] There is some dispute between the parties regarding whether the Plaintiff did, in fact, merely deactivate the account and then neglect to reactivate it within fourteen days, thus causing the account to be "automatically deleted." As noted by Defendants, the procedures for deactivating versus permanently deleting a Facebook account are not identical. (See Defendants' Brief in Support of Motion at *12, D.E. 33-4). While Plaintiff argues that his account was merely deactivated, it appears from the record that Plaintiff must have taken additional steps required to permanently delete his account. See id. For the purposes of deciding the instant motion, the Court finds that it is irrelevant whether plaintiff requested that his account be deleted or merely deactivated, as either scenario involves the withholding or destruction of evidence.

from: Gatto v. United Air Lines, Inc., Dist. Court, D. New Jersey 2013
(note: UAL is my husband's employer)

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Marlene Browne Esq.
www.marlenebrowne.com

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Original Message:
Sent: 08-12-2013 09:57
From: Leslie Farber
Subject: Advising a Client about Facebook Usage

Deleting the FB account may indeed be spoliation of evidence, but the person can deactivate the account (like putting it on hold) and can download a copy of all FB data. Better to do this to avoid potential sanctions.

-------------------------------------------
Leslie Farber Esq.
Montclair NJ
(973)509-8500

-------------------------------------------






Original Message:
Sent: 08-11-2013 12:33
From: Emily Gosnell
Subject: Advising a Client about Facebook Usage



-------------------------------------------
Emily Gosnell Esq
East Windsor NJ
(609) 371-3820

-------------------------------------------

I agree with Bob, certainly.  But I do think that a client may have a legitimate reason to delete his facebook or other social media account during litigation.  All the social media sites can be brutal sources of harassment from friends and relatives of the other side during nasty custody litigation.  If the client is going to drop off facebook or other social media, they shold keep a record of their timeline and wall to avoid the charge of destroying discovery or evidence.




Original Message:
Sent: 08-09-2013 13:05
From: Robert Goldstein
Subject: Advising a Client about Facebook Usage

My retainer agreement advises the client not to post on social media pages during the pendency of their case. That is permissible advice.

It is improper to advise a client to change anything on his or her "wall" that has already been posted.

-------------------------------------------
Robert Goldstein Esq.
Manalapan NJ
(732)972-1600

-------------------------------------------






Original Message:
Sent: 08-09-2013 10:29
From: Melissa Ruvolo
Subject: Advising a Client about Facebook Usage

Lawyer agrees to five-year suspension for advising client to clean up his Facebook page

Good morning colleagues!

The attached article discusses a Virginia case where an attorney was suspended for five years for instructing a paralegal to tell his client to "clean up his Facebook page" after opposing lawyers sought screen shots and other information from his page.  I've attached a link to the article above, which goes into more detail. According to the suspension order, the attorney violated ethical rules that "govern candor toward the tribunal, fairness to opposing party and counsel, and misconduct." 

As I read it, the attorney in this case effectively advised his client to destroy discovery.  I also recognize that this was not a family law/matrimonial case.  However, I'm curious as to how my fellow family law colleagues would extend this rational to our cases.  I frequently advise clients to be careful of what they post on Facebook, considering most people aren't diligent with their security settings.  Even if their profiles are "private", they've still permitted family and friends to have access, who sometimes supply the information/photos to the other spouse.  In several of my own cases, I've used the other spouse's Facebook posts/photos as exhibits to a motion or at trial.  However, never would I advise a client to destroy or "clean up" evidence. 

As I see it, it's safe to tell a client to "be careful", but I don't want to be responsible for a client using that advice to destroy discovery.

I would be interested to know your thoughts.

-------------------------------------------
Melissa M. Ruvolo, Esq.
Ruvolo Law Group, LLC
55 Madison Ave., Suite 360
Morristown, NJ 07960
Phone: (973)993-9960
Fax: (973)993-9961
[email protected]
-------------------------------------------