Most clients don’t anticipate their social media content haunting them in the future. However, what may seem benign to them at the time they click “post” quite often gives us, as their attorneys, shivers of fear (and sometimes shear embarrassment). Instinct tells us to simply have such content deleted. But, not so fast. 

A conundrum exists for lawyers: What crosses the line of spoliation of evidence? A slurry of courts has sanctioned lawyers for providing the wrong advice.

The Florida Bar has recently clarified the issue.

Advisory Opinion 14-1 confirms that attorneys may advise clients to increase privacy settings to the highest level (concealing content from public eye), and, pre-litigation, to remove content relevant to the foreseeable proceeding so long as an appropriate record was maintained (e.g., data preservation) and no rules regarding preservation and/or spoliation of evidence were broken.

Florida’s decision follows a nationwide trend and comes on the heels of similar decisions by New York, North Carolina and Pennsylvania.

The best advice: Tell clients to pretend their mother is reading every post and photo attached to their profiles; if their mother would scold them, so will the Judge.

Brian Karpf is Board Certified in Marital and Family Law. He is a partner at Young, Berman, Karpf & Gonzalez, P.A., with offices in Miami and Fort Lauderdale. Brian is one of the 11th Circuit Representatives on the Florida Bar Young Lawyers Division Board of Governors.