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Ethics and Criminal Practice

By Joel Cohen and James L. Bernard
May 01, 2016

Last month, we asked the question: When faced with a client whose social media postings may harm his legal case, is it ethical for the attorney to advise the client to alter or delete those postings?

Rules and Opinions

There is no one rule of professional conduct that addresses what a lawyer can advise a client concerning the use of social media. In New York, first and foremost, a lawyer must comply with Rule 3.4 and ensure that he does not “suppress evidence that the lawyer or the client has a legal obligation to reveal” or “conceal or knowingly fail to disclose that which the lawyer is required by law” to disclose. New York Rules of Professional Conduct, 22 N.Y.C.R.R. 1200, Rule 3.4(a); cf. ABA Model Rules of Professional Conduct (ABA Rule) 3.4(a); see generally Roy D. Simon, Simon's New York Rules of Professional Conduct, Thomson-Reuters, 2015, Rule 3.4(a). Nor can a lawyer, Rule 3.3 tells us, “make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law.” Rule 3.3 (a)(1); ABA Rule 3.3(a)(1); Simon Rule 3.3. New York's Rule 4.1 similarly prohibits false statements made to third parties. Rule 4.1; cf. ABA Rule 4.1.

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