Hello and welcome to this Ethics Alert blog which will discuss the recent Supreme Court of New Jersey opinion which held that lawyers who allegedly engaged in improper conduct related to access of an opposing party’s Facebook page can be charged with disciplinary rule violations. The disciplinary matter is John J. Robertelli v. The New Jersey Office of Attorney Ethics (A-62-14) (075584) (New Jersey Supreme Court 4/19/16). The disciplinary opinion is here: http://www.judiciary.state.nj.us/opinions/supreme/A6214JohnRobNJ.pdf
According to the opinion, in the underlying matter, the plaintiff sued Bergen County New Jersey related to injuries that he allegedly sustained when a police car struck him in 2007. The two lawyers represented the plaintiff and:
“(i)n order to obtain information about Hernandez, plaintiffs directed a paralegal employed by the firm to search the internet. Among other sources, she accessed Hernandez’s Facebook page. Initially, the page was open to the public. At a later point, the privacy settings on the account were changed to limit access to Facebook users who were Hernandez’s “friends.” The OAE contends that plaintiffs directed the paralegal to access and continue to monitor the non-public pages of Hernandez’s Facebook account. She therefore submitted a “friend request” to Hernandez, without revealing that she worked for the law firm representing defendants or that she was investigating him in connection with the lawsuit. Hernandez accepted the friend request, and the paralegal was able to obtain information from the non-public pages of his Facebook account.
The opinion states that the plaintiff learned of the alleged misconduct when the lawyers “sought to add the paralegal as a trial witness and disclosed printouts” from the plaintiff’s Facebook page. The opinion did not address whether the two lawyers violated any ethics rules or should face sanctions, but whether the New Jersey Office of Attorney Ethics (OAE) could prosecute the lawyers for the alleged misconduct after a regional disciplinary committee found that the lawyers’ actions, even if proven, did not constitute unethical conduct and dismissed the matters.
The OAE disagreed with the disciplinary committee and filed a disciplinary complaint with the Supreme Court against the lawyers. The complaints alleged, inter alia, that the two lawyers communicated with a represented party without consent of the party’s lawyer and engaged in conduct involving dishonesty, fraud, deceit or misrepresentation. The two lawyers argued that they acted in good faith and had not committed any unethical conduct. They also stated that they were “unfamiliar with the different privacy settings on Facebook.
The opinion noted the unique nature of this attorney disciplinary matter and stated that it involves a “novel ethical issue” and “no reported case law in our State addresses the sort of conduct alleged.” The court unanimously held:
“Consistent with the broad authority that the Rules of Court grant the Director and the important goals of the disciplinary process, the Director has authority to review a grievance after a DEC Secretary has declined to docket the grievance. The OAE may therefore proceed to prosecute plaintiffs’ alleged misconduct.”
Bottom line: Lawyers beware: although this issue has not previously been addressed by the New Jersey Supreme Court (or the Florida Supreme Court), the Florida Bar Rules (and the Bar disciplinary rules of most, if not all jurisdictions, including New Jersey), prohibit a lawyer from communicating with a represented person without the consent of that person’s lawyer. Florida Bar Rule 4-4.2(a) prohibits lawyers from communicating “about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer.” The Rule is here: Florida Bar Rule 4-4.2. This rule would appear to prohibit a lawyer (or the lawyer’s agent) from accessing an opposing party’s Facebook (or other social media) page by sending a “friend” or other request and obtaining information that has been made private on that person’s settings.
Be careful out there.
If you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding these or any other ethics, risk management, or other issues, please do not hesitate to contact me.
Disclaimer: this e-mail is not an advertisement and does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.
Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
2454 McMullen Booth Road, Suite 431
Clearwater, Florida 33759
Office (727) 799-1688
Fax (727) 799-1670