Social Media Savvy Required for Lawyers
The Supreme Court of New Jersey issued an order in which it declined to impose discipline on an attorney for his improper use of Facebook in 2007. The decision stems from events that began in 2007, when attorney John Robertelli, according to the Supreme Court of New Jersey Opinion, “…requested that …a paralegal in the firm, conduct internet research into [the opposing party’s] academic and employment background, and any criminal history.” While conducting the research, the paralegal sent a friend request to the opposing party, who was unaware of the paralegal’s association with his lawsuit, and then added the opposing party as a Facebook “friend.”
After the opposing counsel received certain Facebook posts from Robertelli following a deposition, opposing counsel “accused [Robertelli] of violating RPC 4.2 by communicating with his client, through Facebook, without his consent about the subject of the representation.” The Superior Court judge assigned to the case did not allow entry of the Facebook posts into evidence but did not find that Robertelli committed an ethical violation.
However, in July of 2010 opposing counsel wrote to New Jersey’s Office of Attorney Ethics (“OAE”) Director to request an investigation into Robertelli and another associate’s “unethical conduct,” claiming that both Robertelli and the associate “directly contacted” his client by way of their paralegal’s Facebook “friend” request. The OAE filed a complaint against Robertelli and the associate in November 2011, alleging violations of several rules of professional conduct, including RPC 4.2 (communicating with a person represented by counsel).
Robertelli and the associate asserted in their answer that “they acted in good faith and committed no unethical conduct”—Robertelli also posited that he did not “understand how Facebook worked” and thought his paralegal “was accessing information that was publicly available” by sending the plaintiff a friend request.
The case proceeded to a hearing and the special master heard conflicting evidence, which ultimately resulted in District Ethics Committee rendering a split decision as to whether discipline should be imposed. The New Jersey Supreme Court then conducted a de novo review and deferred to the special master’s finding that the “OAE failed to prove by clear and convincing evidence that Robertelli violated the RPCs as alleged in the complaint.” The New Jersey Supreme Court dismissed the charges the against Robertelli.
In dismissing the charges, the Court warned that the dismissal stemmed from the timing of the event; Facebook was new in 2007. The Court then not only advised attorneys that they must understand social media, but also suggested that perhaps amendments may be needed to the Rules of Professional Conduct.
The Opinion concludes: 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.
See our coverage of D.C. Bars guidelines here.
