Two New Jersey lawyers cannot avoid disciplinary charges arising from their use of a paralegal to friend a represented opposing party on Facebook, the state supreme court ruled recently.
We’ve written before about the perils of using Facebook to obtain information about opposing parties or to communicate with them. This latest example involves a twist of particular interest to legal ethics wonks like me, because it also spotlights the issue of how disciplinary power is allocated between local and state ethics regulators.
“Will you be my friend?”
The two lawyers represented governmental defendants against the claims of a plaintiff injured after being hit by a police car. The lawyers directed their paralegal to search the Internet to obtain information about the plaintiff, and in response, she accessed his Facebook page. Initially, the page was open to all, but later, the plaintiff changed his privacy settings to limit access to “friends.”
It is alleged that the two lawyers then instructed the paralegal to access and continue to monitor the non-public parts of the plaintiff’s Facebook account. In response, she submitted a friend request to the plaintiff — but she did not reveal that she worked for the law firm representing the defendants in the case, or that she was investigating him as part of the case.
The plaintiff — who was represented by counsel — accepted the friend request, and so the paralegal was able to get information from the non-public parts of his account.
The plaintiff learned about the lawyers’ actions after they sought to add the paralegal as a trial witness and produced printouts from the plaintiff’s Facebook page and his friends’ pages. He filed a grievance with the local New Jersey District Ethics Committee, asserting that contacting him through Facebook without going through his own attorney constituted an ethical violation.
The local committee, however, declined to docket the grievance; the committee advised the plaintiff that the allegations, if proven, would not be a violation of the New Jersey Rules of Professional Conduct.
Who’s in charge?
But that was not the end of the matter.
The plaintiff’s lawyer filed a grievance directly with the state-level disciplinary body, the Office of Attorney Ethics, which, in New Jersey’s disciplinary system, has parallel jurisdiction. The director investigated and filed a complaint against the lawyers alleging violation of numerous rules, including New Jersey’s versions of Model Rule 4.2 (communicating with a person represented by counsel); Model Rule 5.3 (failure to supervise a non-lawyer assistant); Model Rule 8.4(a) (violating the ethics rules by inducing another person to violate them); and Model Rule 8.4(c) (conduct involving dishonesty, fraud, deceit and misrepresentation).
The lawyers denied any violations — including asserting that they acted in good faith and were “unfamiliar with the different privacy settings on Facebook.” Later, they asked the OAE to withdraw the complaint, arguing that procedurally, the state-level OAE could not proceed against them after the local-level district committee had declined to do so. The OAE would not withdraw the complaint.
State supreme court: “You’re on the hook”
That sent the case out of the disciplinary system and into the state court system, eventually ending up in the state supreme court. On April 19, the court ruled that under New Jersey’s “robust disciplinary system,” the action of the local committee in declining the grievance would not “close off further inquiry” at the state level if the grievance presented “an important, novel issue as to which there is little guidance,” or if the allegations involved “egregious, unethical conduct.”
Bottom line: The two lawyers will have face the ethics charges against them, notwithstanding the pass they got the first time around at the local level. (Be aware that your own jurisdiction may have disciplinary procedures that are quite different from New Jersey’s.) Stay tuned — and in the meantime, be very careful when using social media to investigate litigants. Several jurisdictions have ethics opinions that point to the pitfalls, and provide specific guidance on how to stay out of trouble when doing so. The New York State Bar Association guide to social media ethics issues, published last year, collects many of the significant opinions.