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
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