by: Peter J. Gallagher (@pjsgallagher)
Recent reports have suggested that Facebook is no longer seen as “cool” among teens and other millennials because, among other things, their parents are on Facebook, so how can it possibly be “cool”? Well, with all apologies to Mark Zuckerberg, this post may be the death knell for Facebook’s coolness because this is the second time in the past few months that I am writing about Facebook. (The other article, which discussed the implications of judges being “friends” with attorneys, can be found here.) If parents being on Facebook is reason enough for it not to be “cool,” a lawyer blogging about it somewhat regularly probably removes any last vestiges of coolness.
With that being said . . . A recent Appellate Division decision, Robertelli v. The New Jersey Office of Attorney Ethics, will allow an ethics investigation involving a law firm employee’s use of Facebook to obtain information about a plaintiff in a pending personal injury lawsuit to continue. The issue faced by the Appellate Division – which is discussed below – did not involve the question of whether using Facebook to investigate another party in a pending lawsuit is unethical. But, since the case will now continue, we might get a decision on this underlying issue soon, so this case is worth watching. Other jurisdictions have dealt with similar issues and have usually found the conduct to be violative of the Rules of Professional Conduct. For example, the Philadelphia Bar Association found, in a similar situation, that the attorney’s conduct violated RPC 8.4 (conduct involving dishonesty, fraud, deceit and misrepresentation) and RPC 4.1 (truthfulness in statements to others). Similarly, the San Diego Bar Association found that an attorney’s use of Facebook to “friend” potentially dissatisfied high-ranking employees at an employer that his client was suing violated RPC 4.2 (communicating with a person represented by counsel). With the grievance in Robertelli, New Jersey’s Disciplinary Review Board and Supreme Court may soon weigh in on the issue as well.
In Robertelli, the attorney against whom the grievance was eventually filed represented the Borough of Oakland, the Borough of Oakland Police Department, and a police sergeant in a personal injury lawsuit brought by another officer who claimed to have been injured when he was struck by a police car driven by the sergeant. During the course of that lawsuit, the attorney instructed a paralegal at his firm to search the Internet for information about the officer. The paralegal did so, including by first searching the officer’s Facebook page — which was public for a time but later made private — and then “friending” the officer. The paralegal obtained information from the officer’s Facebook page that could have been used to impeach the officer.
When he learned what had happened, the officer filed an ethics grievance alleging that the attorney’s conduct violated the Rules of Professional Conduct. The Ethics Committee secretary initially determined that the attorney did not engage in unethical conduct and declined to docket the grievance. The officer’s attorney then wrote to the Director of the Office of Attorney Ethics (“OAE”), provided additional information about the grievance, and requested that it be docketed and investigated. The Director agreed. After docketing and investigating the grievance, an ethics complaint was filed against the attorney, which alleged violations of several RPCs, including RPC 4.2 (communicating with a person represented by counsel), RC 8.4(c) (conduct involving dishonesty, fraud, deceit and misrepresentation), RPC 8.4(d) (conduct prejudicial to the administration of justice), and several counts related to the attorney’s direction and supervision of the paralegal.
The attorney requested that the grievance be withdrawn, arguing that the Director’s actions and the subsequent OAE investigation violated the so-called “no appeal” portion or Rule 1:20-3(e)(6), which prohibits appeals from a decision to decline a grievance. The Director declined the request but advised the attorney that he could move to dismiss the complaint if he believed that it failed to state a cause of action or that the OAE lacked jurisdiction. Instead of filing a motion to dismiss, however, the attorney filed a verified complaint against the OAE and its Director in the Chancery Division, seeking a declaration that the OAE lacked authority to investigate and prosecute the grievance.
In response to the complaint, the OAE and Director moved to dismiss, arguing that the Superior Court lacked jurisdiction to because, except for constitutional issues, only the New Jersey Supreme Court has exclusive jurisdiction over attorney discipline matters. The trial court agreed and granted the motion. The Appellate Division affirmed. In this regard, the Appellate Division acknowledged that it was “cognizant of [the attorney’s] concern that [his] challenge to the OAE’s legal authority to prosecute [him] in spite of the [Ethics Committee’s] dismissal should be judicially reviewable in some forum,” but concluded that the appropriate forum was the Supreme Court, not the Superior Court. The Appellate Division further noted that this review could come about through a petition for certification or notice of appeal to the Supreme Court from the Appellate Division’s decision, or through the Supreme Court’s ultimate review of the disciplinary proceedings themselves (assuming discipline is recommended).
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