The State Bar Association of North Dakota Winter 2014 Gavel Magazine | Page 18

adVising CLients on
soCiaL media Posting

Justice Daniel Crothers

North Dakota Supreme Court

“What advice is appropriate to give a
client with respect to existing or proposed
postings on social media sites?” That
question recently was answered by the
New York County Lawyers Association
stating, “New York attorneys may advise
clients as to (1) what they should/should
not post on social media, (2) what existing postings they may or may not remove,
and (3) the particular implications of
social media posts.”i To date, I have found
no other jurisdiction directly addressing
these issues.
The New York opinion starts by noting,
“It is now common for attorneys and their
investigators to seek to scour litigants’
social media pages for information and
photographs. Demands for authorizations
for access to password-protected portions
of an opposing litigant’s social media sites
are becoming routine.”ii
Given the litigation interest in social
media content and in the practices described, the first question is whether a social media litigant can reasonably expect
to preserve or maintain privacy in their
postings. The New York ethics committee
thought so, stating:
Social media users may have some
expectation of privacy in their posts,
depending on the privacy settings
available to them, and their use of
those settings…. There is no ethical
constraint on advising a client to use
the highest level of privacy/security
settin