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.
In Robertelli, the Supreme Court observed that “Facebook was a novelty to the bar in 2008,” and that “no jurisdiction had issued a reported ethics opinion giving guidance on the issue before this Court.” This demonstrated that “Facebook had yet to become the familiar social media platform that it is today in the legal community.” And Robertelli testified that, in 2008, “[h]e had at best, a primitive understanding of social media.” Therefore, the Supreme Court accepted that Robertelli believed his paralegal was searching for publicly available information through her efforts, and was not impermissibly communicating with plaintiff.
But the Supreme Court cautioned that its decision was entirely of a time: “Although we find that Robertelli did not violate RPC 4.2 . . . given the novelty of Facebook in 2008 and for the reasons already stated, lawyers should now know where the ethical lines are drawn.” And the Court attempted to draw those lines for lawyers:
When represented Facebook users fix their privacy settings to restrict information to “friends,” lawyers cannot attempt to communicate with them to gain access to that information, without the consent of the user’s counsel. To be sure, a lawyer litigating a case who — by whatever means, including through a surrogate — sends a “friend” request to a represented client does so for one purpose only: to secure information about the subject of the representation, certainly not to strike up a new friendship. Enticing or cajoling the represented client through a message that is intended to elicit a “friend” request that opens the door to the represented client’s private Facebook page is no different. Both are prohibited forms of conduct under RPC 4.2. When the communication is ethically proscribed, it makes no difference in what medium the message is communicated. The same rule applies to communications in person or by letter, email, or telephone, or through social media, such as Facebook
[Note: Robertelli had a lengthy – and, perhaps to some, interesting – procedural history. As the Supreme Court noted: “The ethical charges filed against Robertelli have drawn varied responses from the disciplinary authorities: the District Ethics Committee declined to 24 docket the charges; the Special Master dismissed the charges after hearing three days of testimony; and the DRB issued four opinions, one in favor of imposing an admonition, another in favor of imposing a censure, and two in favor of dismissing the charges.” If you are interested in these sorts of things, be sure to read the earlier, Appellate Division decision in John J. Robertelli v. The New Jersey Office of Attorney Ethics, or check out my prior post on the Appellate Division’s decision, Ethics Grievance Against Defense Lawyer Who “Frinded” Plaintiff Will Continue. ]
Pete's Take 