“Once Upon a Time . . . in Legal Ethics and Social Media.”

By: Peter J. Gallagher (LinkedIn)

In a recent decision, the New Jersey Supreme Court looked back to a time before social media was ubiquitous, a time when Facebook was cutting edge and perhaps even – pause for collective gasp from anyone under 40 – cool.

The case – In the Matter of John Robertelli – involved an attorney who represented defendants in a personal injury case. He asked his paralegal to search the Internet for information about plaintiff. The paralegal did, first by searching plaintiff’s Facebook page — which was allegedly public for a time but later made private — and then by “friending” plaintiff. The paralegal obtained information from plaintiff’s Facebook page that could have been used to impeach plaintiff. In 2021, the question of whether this conduct violates RPC 4.2 – which prohibits attorneys from communicating with individuals represented by counsel – seems pretty straightforward. But the conduct in Robertelli took place in 2008, which made all the difference to the Supreme Court:

Our Rules of Professional Conduct (RPCs) generally prohibit a lawyer from communicating with another lawyer’s client about the subject of the representation without the other lawyer’s consent. RPC 4.2. That ethical prohibition applies to any form of communication with a represented party by the adversary lawyer or that lawyer’s surrogate, whether in person, by telephone or email, or through social media. Although it is fair game for the adversary lawyer to gather information from the public realm, such as information that a party exposes to the public online, it is not ethical for the lawyer — through a communication — to coax, cajole, or charm an adverse represented party into revealing what that person has chosen to keep private.

The issue in this attorney disciplinary case is the application of that seemingly clear ethical rule to a time, more than a decade ago, when the workings of a newly established social media platform — Facebook.com — were not widely known. In 2008, Facebook — then in its infancy — had recently expanded its online constituency from university and high school students to the general public. A Facebook user could post information on a profile page open to the general public or, by adjusting the privacy settings, post information in a private domain accessible only to the universe of the user’s “friends.”

The novelty of Facebook in 2008 – to both the bar at large and Robertelli – saved the attorney from potential ethical consequences. But the Supreme Court cautioned, attorneys can no longer “take refuge in the defense of ignorance” when it comes to social media.

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Words of Warning: “If you promise the police that you will take charge of a drunk driver and his or her car, you will be counted on to do so.”

By: Peter J. Gallagher (LinkedIn)

From the Appellate Division comes another case that sounds more like a law school hypothetical than real life. Here is the scenario: A driver is pulled over for a traffic offense. Signs point to the driver being intoxicated, but the police don’t conduct a field sobriety test. Instead, the officers allow the driver to call a friend to drive him home. The driver’s friend arrives and assures the offices that he will take the driver and his car “safely to a residence” (note: whether the friend promised to take the driver “home” is not clear).  Unfortunately, on the way to the “residence,” the drunk driver convinces his sober friend to let him drive again. The friend agrees and leaves the car. The driver takes control and later gets into a serious accident. The question is whether the friend can be civilly liable for the accident along with the drunk driver and others. The answer from Diaz v. Reynoso . . . maybe.

In Diaz, four friends – Reynoso, Dominguez, Gonzalez and Paredes – went to a rooftop party in Fort Lee and then an Argentinian restaurant in Englewood. Reynoso admitted to having at least two cocktails, a shot of tequila, and two beers at the restaurant. When they left the restaurant, the four friends split up – Reynoso left in his car with Gonzalez as a passenger, while Paredes left in his van with Dominguez as his passenger.

Shortly thereafter, police officers stopped Reynoso’s car after they observed it travelling the wrong way down a one-way street. After speaking with Reynoso , one of the officers asked Reynoso if he felt capable of driving. He said he did, but also offered to call someone to pick him up. The officer “responded that would be preferable.” The officers did not administer any field sobriety tests on the driver.

Continue reading “Words of Warning: “If you promise the police that you will take charge of a drunk driver and his or her car, you will be counted on to do so.””

Does the “rescue doctrine” apply to pets? (Warning: Dog lovers probably will not like the answer.)

By: Peter J. Gallagher (LinkedIn)

In a case with facts that could have been ripped from a torts exam, the Appellate Division held that a woman who jumped into a canal to try to save a neighbor’s dog could not sue the neighbor under the rescue doctrine because the doctrine applies only to people trying to rescue other people, not people trying to rescue animals.

In Samolyk v. Berthe, plaintiff claimed that she heard someone calling out that their dog was in a canal near her property and needed help. She jumped in to try to help. Defendants tell a different story. They claim that they were having dinner with their son and some friends when they realized their dog was missing from their fenced-in yard. They claim they searched for the dog, determined that the dog had fallen or jumped into the canal, walked to a neighbor’s backyard, and pulled the dog out of the water. Defendants claim they never asked for help from plaintiff or anyone else.

Defendants called 911 some time later after their son told them that “a woman needed assistance.” When police arrived, plaintiff was unconscious on a floating dock and the fire department was on the scene performing CPR. Plaintiff regained consciousness, but allegedly suffered “debilitating brain damage” that led to her husband being appointed her guardian ad litem.

Continue reading “Does the “rescue doctrine” apply to pets? (Warning: Dog lovers probably will not like the answer.)”

Drinking + Dancing + Pools = Obvious Hazard?

By: Peter J. Gallagher (LinkedIn)

As summer is about to (unofficially) begin, a timely post about mixing drinking, dancing, and pools. (Spoiler alert: It usually doesn’t turn out great.) As a side note, in the 1990’s I occasionally went to shows at Tradewinds in Sea Bright. It was a pool/beach club that held concerts on weekend nights (I was there when Bruce Springsteen showed up to play with Steve Earle.) There were pools not far from where the shows were held and I was always amazed that nobody fell in, at least not while I was there. But I digress . . .

In Antonio v. Harrah’s Atlantic City Propco, LLC, plaintiff attended a “Pool After Dark” party at Harrah’s in Atlantic City. At these events, which were held three-days a week, year round, from 10 pm to 4 am, “[a]ttendees drank, listened to music, and danced around a pool in the center of the venue.” Harrahs employed between 25 and 35 security guards during the events. A lifeguard was also on duty and two Atlantic City police officers were stationed outside the venue. “[I]ncidents of disorderly conduct” were “frequent” at the events, with police issuing about two summonses per night and ejecting patrons every week for fighting. And, in the ten weeks leading up to the night plaintiff was injured, there were eight instances of attendees being pushed into the pool, intentionally or otherwise.

Unfortunately, the night plaintiff attended, she was bumped or pushed into the pool – allegedly by third-party defendant whose boyfriend plaintiff had “chatted” with during the event – and severely injured her hand. She sued Harrah’s, alleging negligent maintenance of premises.

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Jump Back! Parent Lacks Apparent Authority to Bind Someone Else’s Child To Trampoline Park Waiver

By: Peter J. Gallagher (LinkedIn)

When the history of arbitration agreements in New Jersey is written – OK, maybe that is an “if” more than a “when” – it will owe a great debt to trampoline parks. Over the past several years, New Jersey courts have issued numerous decisions regarding the enforceability of arbitration agreements at these parks. I have written about several of them – “Court Bounces Trampoline Park’s Arbitration Provision“, “Bounce Around the {Court}Room: Trampoline Park’s Arbitration Provision Deemed Unenforceable“, and “Arbitration Provision Bounced Again, Even After Kindred Nursing Decision“. (Note: These titles prove, if nothing else, that I am not very original.) In Gayles v. Sky Zone Trampoline Park, we have another entry on the list.

The plaintiff in Gayle was a child who attended a birthday party at the defendant trampoline park. The birthday boy invited several friends to the party, including plaintiff. The birthday boy’s parent told the other children’s parents that they could drop their children off and she would drive them to the party. Plaintiff’s parent took plaintiff’s mother up on the offer and dropped plaintiff off at the birthday boy’s house on the day of the party.

When the birthday boy’s mother arrived at the trampoline park with the children – her own and the other party-goers, including plaintiff – she was directed to a “waiver station,” where she completed and signed a waiver that included an arbitration provision. She testified at deposition that this process was “quick” and that she “completed the Agreement without reading it fully and without assistance from defendant’s staff.”

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