TRENTON, N.J. (Legal Newsline) - Whether it’s called mining or spying, becoming an adversary’s Facebook friend to obtain detrimental information that could be used in court crosses ethical boundaries, an attorney specializing in digital discovery says.
“What may be fine for other people is not fine for lawyers because we are guided by ethical rules. We are not supposed to engage in subterfuge,” J. Alexander Lawrence told Legal Newsline.
A partner at Morrison & Foerster in New York City, Lawrence advises clients and lectures aspiring attorneys on e-discovery issues and best practices. Social media has created new areas of concern regarding legal ethics, Lawrence said.
On April 19, the New Jersey Supreme Court cleared the way for the state's Office of Attorney Ethics to consider disciplinary action against John J. Robertelli, who had represented the Borough of Oakland, N.J., the Borough of Oakland Police Department and a police sergeant in a personal injury case against them.
The complaint was brought by Dennis Hernandez, who alleged he sustained permanent injuries after being struck by a police cruiser.
“Robertelli directed a paralegal employed by his law firm to search the internet to obtain information about Hernandez,” a grievance Hernandez filed with the District IIB Ethics Committee said.
At one point, everything posted on the Facebook page was open to the public. Then Hernandez changed the privacy settings and only friends were privy to some content.
Robertelli’s paralegal then submitted a friend request.
Prior to a trial, Hernandez’s new friend appeared on a witness list and was prepared to present printouts from Facebook posts.
“Court documents don’t give details on what was uncovered on Facebook, but it was probably something damaging. It is not uncommon for defendants in a personal injury case to present pictures or other evidence that the injuries are not as severe as presented,” Lawrence said.
The District Ethics Committee, when asked to review, found that Robertelli had done nothing wrong and refused to docket the matter.
But Hernandez’s attorney, Michael Epstein, asked the director of the Office of Attorney Ethics to proceed with an investigation, which resulted in an OAE complaint with the District XIV Ethics Committee that alleged Robertelli violated Rules of Professional Conduct pertaining to:
-Communicating with a person represented by counsel;
-Failure to supervise a non-lawyer assistant;
-Conduct involving dishonesty, fraud, deceit and misrepresentation; and
-Conduct prejudicial to the administration of justice.
Robertelli challenged the Office of Attorney Ethics’ jurisdiction, arguing that, except for constitutional challenges, the New Jersey Supreme Court has exclusive jurisdiction over attorney disciplinary matters. The OAE defended its right to handle the matter.
Robertelli also said the District Ethics Committee's initial refusal to file a complaint was final and unreviewable.
A superior court ruled that filing an ethics grievance with the OAE was, in effect, a filing with the Supreme Court.
In February, an appellate court affirmed the trial court’s ruling, sending the case to the state Supreme Court.
It’s important to note that no final decision has been issued on the merits of this case, Lawrence said, adding that the state Supreme Court’s ruling “only confirms only that the Office of Attorney Ethics has authority to review the ethics complaint.”
Facebook spying of this nature has been deemed forbidden in New York, Massachusetts and Pennsylvania, Lawrence said.
“Even when someone does something dumb, like accept a friend request from someone they don’t know, lawyers have a responsibility to identify themselves and the person they represent,” Lawrence said.