Two New Jersey defense lawyers face attorney ethics charges in connection with the way they allegedly accessed Facebook. Regardless of how these charges are resolved, the facts in the case should serve as a reminder to attorneys to become more familiar with social media, and perhaps be more specific in the direction they give to their staff.
The New Jersey Office of Attorney Ethics (OAE) alleges that John Robertelli and Gabriel Adamo caused a paralegal to "friend" the plaintiff in a personal injury case so they could access information on the plaintiff’s Facebook page that was not publicly available. The OAE alleges that the conduct violated Rules of Professional Conduct governing communications with represented parties, along with other rules. Both attorneys deny the charges and claim that they only directed the paralegal to do general internet research, and that they did not tell her to add the plaintiff as a “friend” to gain access to otherwise private information.
The Facebook access came to light during deposition questioning when the plaintiff was asked very specific questions about his travel, dancing, wrestling, or activities which would tend to disprove his claims as to the seriousness of the injuries he allegedly suffered after being struck by a police cruiser while doing push-ups in a driveway.
The attorneys are charged with violating RPC 4.2, concerning communications with represented parties; 5.3(a), (b) and (c), failure to supervise a nonlawyer assistant; 8.4(c), conduct involving dishonesty and violation of ethics rules through someone else's actions or inducing those violations; and 8.4(d), conduct prejudicial to the administration of justice. Mr. Robertelli, the supervising partner, is also charged with breaching RPC 5.1(b) and (c), which impose ethical obligations on lawyers for the actions of attorneys they supervise.
While no New Jersey ethics opinion to date addresses “friending” individuals in connection with litigation, the bars of New York, New York City, Philadelphia, and San Diego have deemed it unethical.
These OAE charges, along with other New Jersey legal precedent, highlights the concerns and issues surrounding improper access to otherwise private social media content.