As we previously reported, sending a ”friend” request to access information on an individual’s Facebook page that is not publicly available may have serious ethical implications. Specifically, the New Jersey Office of Attorney Ethics (OAE) alleges John Robertelli and Gabriel Adamo violated the Rules of Professional Conduct, including those governing communications with represented parties, when they caused a paralegal to “friend” the plaintiff in a personal injury case so they could access information on the plaintiff’s Facebook page.

In an attempt to end the disciplinary action against them, the attorneys brought a declaratory judgment action against the state ethics authorities for lack of subject matter jurisdiction. Today, an appeals panel upheld the dismissal of that declaratory judgment action, finding that only the New Jersey Supreme Court can decide the appropriateness of bringing an ethic’s case. As such, the matter returns to the OAE for decision and/or further proceedings.

This case highlights the need for care when conducting investigations into an adverse party and the limits on accessing truly non-public information contained in social media.