New Jersey Supreme Court dismisses charges against lawyer alleged to have engaged in improper Facebook access in 2008

Hello and welcome to this update of my April 16, 2016 Ethics Alert which will discuss the recent New Jersey Supreme opinion dismissing a complaint alleging that a lawyer improperly accessed an opposing party’s Facebook page in 2008.  The style of the matter is In the Matter of John J. Robertelli, Case No. 084373, and the September 21, 2021 syllabus and opinion are here: https://www.njcourts.gov/attorneys/assets/opinions/supreme/d_126_19.pdf?c=jCl According to the summary of the opinion, “(the lawyer) represented a public entity and public employee in a personal-injury action brought by Dennis Hernandez.  During  the course of internet research, (the lawyer’s) paralegal forwarded a flattering message to Hernandez, and Hernandez unwittingly granted her “friend” status, giving her access to his personal private information.”

The opinion states: 

“The issue in this attorney disciplinary case is the application of that seemingly clear ethical rule to a time, more than a decade ago, when the workings of a newly established social media platform — Facebook.com — were not widely known. In 2008, Facebook — then in its infancy — had  recently expanded its online constituency from university and high school  students to the general public. A Facebook user could post information on a  profile page open to the general public or, by adjusting the privacy settings, post information in a private domain accessible only to the universe of the  user’s “friends. 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 opinion further states:

“After conducting a de novo review of the record and affording deference  to the credibility findings of the Special Master, we conclude that the OAE has failed to establish by clear and convincing evidence that Robertelli violated the RPCs. The disciplinary charges must therefore be dismissed.”

“We add the following. Attorneys should know that they may not  communicate with a represented party about the subject of the representation — through social media or in any other manner — either directly or indirectly without the consent of the party’s lawyer. Today, social media is ubiquitous, a  common form of communication among members of the public. Attorneys  must acquaint themselves with the nature of social media to guide themselves  and their non-lawyer staff and agents in the permissible uses of online  research. At this point, attorneys cannot take refuge in the defense of ignorance. We refer this issue and any related issues to the Advisory Committee on Professional Ethics for further study and for consideration of  amendments to our RPCs.”

Bottom line:  Since this incident happened in 2008, the New Jersey Supreme Court did not discipline this lawyer; however, lawyers must be aware that all jurisdictions, including Florida, have disciplinary rules which prohibit a lawyer from communicating with a represented person without the consent of that person’s lawyer, and would prohibit a lawyer (or the lawyer’s agent) from accessing an opposing party’s private Facebook (or other social media) content by sending a ‘friend’ request.” 

Be careful out there.

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.

2999 Alt. 19, Suite A

Palm Harbor, Florida

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

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Joseph Corsmeier about.me/corsmeierethicsblogs

Florida lawyer disbarred and arrested for disparaging statements and accusations of judicial witchcraft

Hello everyone and welcome to this Ethics Alert which will discuss the recent Florida Supreme Court Order disbarring a lawyer for making disparaging statements and accusations regarding the judiciary and accusing judges of witchcraft.  The lawyer was also recently arrested for the misconduct.  The case is The Florida Bar v. Edward Juan Lynum, Case No.: SC20-746 and The Florida Bar Complaint, Report of Referee, and January 21, 2021 Florida Supreme Court Order can be found here: https://www.floridabar.org/public/acap/disc-docs/?icn=202030020&member=18484      

According to the lengthy and detailed Report of Referee dated October 30, 2020, the lawyer described himself in online posts as the victim of a conspiracy in which judges and political figures were conspiring to kill him and destroy his life due to their bigotry and worship of satanic forces. 

The referee’s report states that, in a July 2019 Facebook post, the lawyer stated that the first judge who presided in his divorce “fabricates evidence” and is “a dirty stain in our clean SUMTER COUNTY.”   The lawyer also said on his blog that the judge has a reputation as “a judge who fabricates evidence and fabricates the evidence in red font, so it screams pagan witchcraft. Her decision to fabricate evidence in red-font screams, ‘I am Satan’ in white people’s words.’”

The report states that lawyer also called the first judge “a dumb, satanic slut”, referred to Bar Counsel as a worthless and inept “satanic slut”, and said that the chief justice of the Florida Supreme Court should be executed for tolerating hate crimes and witchcraft. 

In another Facebook post cited in the report, the lawyer accused the judge who took over the divorce case of sodomizing the lawyer’s daughter.  The lawyer also stated on his blog that the judge issued “a satanic order” and that he and judges like him “have weaponized their judicial power for evil that appear racist to minorities. I don’t and won’t call it racism because it trivializes and distracts from his objective criminal behavior and practice of witchcraft.”

The referee’s report also cites a post in which the lawyer said the two judges “can’t hide from my almighty God’s vengeance; like David, I will kill Goliath and hold up his bloodied and severed head with a smile on my face.”

The referee found in the report that the lawyer’s posts had “grown more frequent, threatening and outrageous” as the Bar matter progressed.  The January 21, 2021 Florida Supreme Court Order disbarring the lawyer was issued two weeks after his arrest on criminal charges, including threatening harm to a public servant.

Bottom line:  This is an outrageous and disturbing example of a lawyer losing his license and being criminally prosecuted for improper online and internet activity and communications, this time on Facebook and his public blog.   

Be careful out there and, of course, watch what you say online.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship 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.

29605 U.S. Highway 19 N. Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Joseph Corsmeier about.me/corsmeierethicsblogs

Tennessee lawyer suspended for Facebook advice on how to kill an ex-boyfriend and make it look like self-defense

Hello everyone and welcome to this Ethics Alert which will discuss the recent opinion of the Tennessee Supreme Court imposing a four year suspension (with one year active) on a lawyer for giving advice on Facebook on how to kill an abusive ex-boyfriend and make it look like self-defense.  The case is In re: Winston Bradshaw Sitton, BPR#018440 (No. M2020-00401-SC-BAR-BP).  The opinion is here: https://www.tncourts.gov/sites/default/files/in_rewinstonbranshawsitton.opn_.pdf     

According to the opinion, a woman posted on Facebook in 2017 requesting advice on how to handle possible abuse or harassment by an ex-partner.  The lawyer responded to the post on Facebook and encouraged her to “lure” the man into her home and shoot him.  He also told her to claim the man broke in with a plan to harm her. The lawyer stated in the post: “Even with the new stand your ground law, the castle doctrine is a far safer basis for use of deadly force.” 

The lawyer later posted that the woman should delete her post if she was serious.  “As a lawyer, I advise you to keep mum about this if you are remotely serious.  Delete this thread and keep quiet.  Your defense is that you are afraid for your life . . . .”

The woman followed the lawyer’s advice and deleted the posts; however, the ex-boyfriend saw the posts and provided screenshots to Shelby County District Attorney General’s office, which reported the posts to the Tennessee Board of Professional Responsibility.

According to the opinion, a disciplinary hearing panel found that the lawyer was unapologetic for his comments and claimed he did nothing wrong.  The lawyer claimed that his comments were sarcastic and part of his “dark humor” and that was a 30 year lawyer who was not “stupid” enough to post the advice in a public forum if he was actually serious.  Notwithstanding the lawyer’s lack of remorse or acknowledgment of guilt, the hearing panel recommended that the lawyer be suspended for 60 days.  The disciplinary board advocated for a lengthy suspension of disbarment.. 

The opinion states: “Our rules do not permit lawyers to offer advice on how to commit crime with impunity.”  “We agree with (the lawyer) that it is hard to conceive of any reason why a lawyer, any lawyer, would offer instructions on how to commit murder and stage a concocted defense.”  “Lawyers who choose to post on social media must realize they are handling live ammunition; doing so requires care and judgment.”  The lawyer’s license had previously been suspended in August 2018 for not paying professional taxes.

The court’s opinion imposed a four-year suspension, with one year on active suspension and the remainder on probation. The lawyer must also complete nine CLE hours in addition to the annual CLE requirement related to the ethical use of social media by attorneys before he can be reinstated to practice law.

Bottom line:  Just when you think you have seen (and heard and read it all), an opinion like this comes out.  This is just another example of a lawyer putting his license in jeopardy for online and internet activity, this time on Facebook.  This lawyer received a 4 year suspension (with 3 years suspended) for giving instructions on how to kill someone and make it look like self-defense.  Whether it was dark humor or not, I am surprised that the lawyer was not disbarred.  

Be careful out there and, of course, watch what you say online.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship 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.

29605 U.S. Highway 19 N. Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Joseph Corsmeier about.me/corsmeierethicsblogs