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