Telling Client to Delete Facebook Photos Can Lead to Sanctions

news-jessica-lesterThe final chapter in the sad story of the wrongful death of Jessica Lester has been written and the family’s lawyer has been suspended from the practice of law for 5 years and fined over $540,000 dollars for telling the widower to delete a Facebook page. Ridiculous. For a survey of the pleadings check out www.legaldocs.com

The story began in 2007 when a cement truck that was speeding on a curvy Piedmont road near Monticello outside of Charlottesville, Virginia took a curve too fast and tipped over killing the 23 year old Lester and injuring her husband as they drove to work. She lived for 8 days before dying of the skull fractures. The Allied driver was charged and plead guilty to Manslaughter. He was sentenced to two years and only served 30 days in jail.


There was no question the Allied Concrete driver was at fault so the defense lawyer went after the the surviving spouse. When you have no facts, throw mud. Apparently, the Court finds that to be appropriate behavior for a trial lawyer. During the course of the litigation they dug through the surviving husband’s Facebook account and found pictures of him partying a year later with a shirt reading “I love Hot Moms.” The defense lawyers pressed on for full access. In a bout of bad judgment, the Plaintiffs lawyer’s firm emailed the client telling him to delete that picture and several others. Eventually, the defense got all of the pictures, but the Plaintiff’s lawyer had crossed an ethical and legal line by ordering the pictures taken down.

The case went to the jury, and the jury saw through the bullshit defense tactic. Here is an interview with one of the jurors who said they ignored the photos. Arguing that a 25 year old husband did not love his dead wife because he posted a stupid picture a year later is not evidence of anything other than the human condition. The jury returned a verdict of $2.3 million for the husband’s injury and $6.2 million for the death of the wife. The comedy gold comes in the Order from Judge Hogshire where he gave his opinion on the effectiveness of the Defense tactics:

“Murray injected passion and prejudice into the┬átrial, shouting objections and breaking into tears when addressing the jury. Most of Murray’s actions in this respect were suffered without objections from defense counsel, who focused their defense upon the denial of liability (despite Defendant Sprouse’s admission to having pled guilty to manslaughter in connection with the accident . . .) and upon aggressive, but obviously ineffectual, attacks upon Lester’s credibility and character. This defense strategy produced the extreme opposite of its desired effect, serving to create additional passion and sympathy for Lester and anger towards the Defendants.” Full Supreme Court Opinion is Here

In typical conservative Virginia Judicial fashion, the trial Judge reduced the wife’s award to $2.1 Million deciding on his own that human lives are not worth that much. Then he turned around and fined the Plaintiff’s lawyer $542,000.00. The Virginia Supreme Court reinstated the full verdict to $6.2 million for the wife but let the sanction on the lawyer stand. Now the Virginia Bar has suspended the lawyer for 5 years.

Let me get this straight. A lawyer orders a client to take down distasteful pictures that have nothing to do with why a woman died at the hands of a reckless driver and that is deserving of a half million dollar fine and disbarment. Now weigh that in light of the punishment to the driver who killed a woman and badly injured a man. He served 30 days in jail.

Get your head out of your ass Virginia. There is no doubt Murray’s behavior was wrong and unethical but the reality is it had no impact on the case whatsoever. Some overly aggressive defense firms (a minority for certain) delete evidence and hide documents everyday with nothing more than a slap on the wrist and a spoliation charge and that comes with evidence that bears on liability.

As a Virginian by choice for many years, I can say I am glad I don’t practice law there and am less proud today. The judiciary should be ashamed. This is just ridiculous and I will wait with bated breath to see how the Court handles the next account of spoliation of tangentially relevant evidence by a Chamber of Commerce member corporation or Defense firm.

What is the takeaway for Georgia lawyers? Do not counsel your clients to do anything other than show judgment with what they post. Do not request deletion of anything.

Let’s take this to a logical extreme now. Can I file a subpoena duces tecum for your iphone to look at all of your text messages and photos there? Is there an expectation of privacy? What if you share the photos with iCloud? Is the expectation gone? As plaintiff’s counsel am I allowed to subpoena all of a corporations internal email to find out if there was negative chatter about a particular driver in a trucking death case. If not, why not.

Facebook is a diary in every sense. I have always felt that diaries and the like should be privileged. I do not want to live in a world without some privacy. Georgia Courts will need to act to define the boundaries because it is getting worse everyday.

I condemn Murray for ordering a client to take down a Facebook page, but I understand why he did so. For someone in his late fifties, the concept of Facebook is a personal photo album. It is not a business record, it does not record that he was drinking on the day of the crash. It is the personal domain of the widower and none of Allied Concrete’s business. It is easy to see how this did not register as an illegal and unethical act. I have no problem with sanctions, but half a million dollars and the end of a career is not appropriate in light of a 30 day sentence for manslaughter in the same case.