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August 31, 2016 Top Story

High Court OKs Ethics Case Based on Paralegal's Improper Use of Facebook

Court finds that attorneys can be prosecuted for social media investigation tactics

Onika K. Williams

A state bar ethics office can prosecute the alleged misconduct of two attorneys who used Facebook as an investigatory tool, says the New Jersey Supreme Court. Robertelli v. N.J. Office of Attorney Ethics serves as a warning for attorneys to be cautious when using social media as an investigatory tool, even if only procedurally specific to the New Jersey ethics system.

Facebook "Friending" Leads to Misconduct Allegation 

In Robertelli, two attorneys violated the New Jersey Rules of Professional Conduct (RPCs) when they allegedly instructed a paralegal to "friend" a represented adverse party in a personal injury suit. In 2007, a police car driven by an Oakland police sergeant allegedly struck a pedestrian, Dennis Hernandez.

Hernandez claimed that he suffered permanent injuries and filed suit against the police department and other defendants. To gather information about Hernandez, the two defense attorneys directed a paralegal to search the Internet. Among the sources, the paralegal accessed Hernandez's Facebook page several times.

Initially, the Facebook page was public. Hernandez later changed the privacy settings on the account to limit access to Facebook users who were "friends" of Hernandez. The attorneys allegedly directed the paralegal to access and continue to monitor the non-public pages, and the paralegal also submitted a "friend request" to Hernandez. While the paralegal did not misrepresent her identity, she did not reveal that she worked for the two attorneys and was investigating Hernandez.

Hernandez ultimately accepted the friend request. He learned of the firm's actions before trial when the attorneys sought to add the paralegal as a trial witness. The firm also disclosed copies of Hernandez's Facebook page and his friends' pages.

Hernandez's lawyer objected to the documents at trial. Later, he filed a grievance with a local bar ethics secretary. The local bar ethics committees have the authority to screen, investigate, prosecute, and hear disciplinary matters. Secretaries have to be licensed attorneys and review all grievances on behalf of the local bar committees. The grievance asserted that the attorneys violated the RPC when their paralegal contacted Hernandez directly through his Facebook page without first contacting his lawyer.

NJ Supreme Court Finds Misconduct Case Can Proceed 

Weeks later, the secretary for the local bar ethics committee advised Hernandez in writing that she reviewed his grievance and determined that the allegations, if proven, would not constitute unethical conduct. She decided there would be no further investigation.

Hernandez's lawyer next sent a letter to the director of the state bar's ethics office, recounting the alleged misuse of Facebook by the two attorneys and made a formal request for investigation. The director is appointed by the New Jersey Supreme Court and has investigative and prosecutorial authority. The director investigated the matter and filed a complaint against the two attorneys. The complaint alleged violations of several rules of professional conduct, including Rule 4.2 (communicating with a person represented by counsel) and Rule 5.3(a), (b), and (c) (failure to supervise a non-lawyer assistant).

The two attorneys eventually filed a complaint in New Jersey Superior Court asking the court to (1) declare that the director lacked authority to review the local ethics committee's decision not to investigate the matter and (2) enjoin the state bar's ethics office from pursuing Hernandez's complaint. The ethics office moved to dismiss the attorneys' complaint.

The trial court dismissed the attorneys' complaint because it determined that the state's high court and ethics bodies have exclusive jurisdiction over attorney disciplinary matters. The immediate appellate court affirmed the trial court's dismissal, explaining that except for constitutional challenges, which the attorneys did not raise, the New Jersey Supreme Court has exclusive jurisdiction and authority over attorney disciplinary matters.

The New Jersey Supreme Court granted the attorneys' petition for certification. The high court affirmed the judgment of the lower appellate court and the trial court that the trial court lacked subject matter jurisdiction over the attorneys' complaint.

The court explained that article VI, section 2, paragraph 3 of the New Jersey Constitution declares that the "[t]he Supreme Court shall have jurisdiction over the admission to the practice of law and the discipline of persons admitted." After examining the inner workings of its disciplinary system, the high court concluded that the court rules empower the director of the state bar's ethics office to review an allegation of attorney misconduct if a secretary of a local ethics committee refuses to investigate the matter. The court found while the director should use this power sparingly, the director may proceed to prosecute the misconduct in the Hernandez case.

Use Caution When Using Social Media as an Attorney

Section leaders agree that use of social media as an investigatory tool for attorneys has far-reaching implications. "It is inherently misleading to 'friend' a litigation opponent represented by counsel, when the true purpose of the communication is to secure evidence for an adversarial proceeding. Such an inherent misrepresentation may be deemed to violate [Model Rule of Professional Conduct] Rule 4.1 (Truthfulness in Statements to Others)," warns Thomas G. Wilkinson Jr., Philadelphia, PA, cochair of the Conflicts of Interest Subcommittee of the Section of Litigation's Ethics & Professionalism Committee.

"There is, however, typically no prohibition on asking someone who is already a 'friend' of a person with a social media account to access, download or print social media postings from the friend's account to which he or she has access," advises Wilkinson. Section leaders also encouraged the use of caution generally when using social media.

"While you always want to be at the forefront of social media, you really need to familiarize yourself with it first and think through what are the ramifications of using it to ensure that you are not unintentionally violating a rule of professional conduct," cautions Ronald L. Israel, West Orange, NJ, member of the Ethics & Professionalism Committee. "Use of social media is only going to increase. It is not going to decrease. Lawyers just need to be careful,"concludes Israel.

 Onika K. Williams associate editor Litigation News.

Keywords: investigatory tool, Facebook, privacy settings, exclusive jurisdiction

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