So can I call myself a Super Lawyer or not? Either way, can I still wear my cape?

You know it’s “award season” – at least the legal world’s version of it – when your social media starts to fill up with posts that sound like this: “So honored to be included as one of the ‘Worlds Most Awesome Patent Lawyers’ with 43 other members of my firm.” The question for New Jersey lawyers is whether otherwise innocent humblebrags like this actually run afoul of our Rules of Professional Conduct. Somewhat surprisingly, most of these posts do.

Under RPC 7.1, lawyers cannot make false or misleading statements about their services. It used to be that any statements comparing one lawyer’s services to other lawyers’ services were deemed false and misleading. And since superlatives like “best,” “super,” “preeminent,” “distinguished,” “top,” “leading,” and “top-rated” are inherently comparative, this meant that no lawyer could advertise that they were included on a list of, for example, “New Jersey’s Best Lawyers.”

This changed about a decade ago when RPC 7.1 was amended to allow attorneys to advertise about winning comparative/superlative awards like this, but only if: “(i) the name of the comparing organization is stated, (ii) the basis for the comparison can be substantiated, and (iii) the communication includes the following disclaimer in a readily discernible manner: ‘No aspect of this advertisement has been approved by the Supreme Court of New Jersey.’”

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In California, a bee is a fish. (At least for purposes of California’s endangered species act.)

By: Peter J. Gallagher (LinkedIn)

In a recent decision, Almond Alliance of California v. Fish and Game Commission, a California court was asked to determine whether bumble bees fall within the definition of a “fish” in the California endangered species act. The issue arose when California attempted to classify four types of bumble bees as endangered species. Under California law, “fish” can be classified in this manner, so if the bees qualified as “fish” then they could be protected. Seems like an easy question to answer, right? But remember, this is California.

The court held that a bee is a “terrestrial invertebrate” and all invertebrates – not just ones that spend at least some of their time in the water – are included under the definition of “fish” in California’s endangered species act. Good news for bees; bad news for the English language.

In Almond Alliance, the court acknowledged that “[a] fish, as the term is commonly understood in everyday parlance, of course, lives in aquatic environments.” But the California legislature defined “fish,” for purposes of its endangered species act, as a “wild fish, mollusk, crustacean, invertebrate, [or] amphibian.” According to the legislative history, this expanded definition would “permit closer control and monitoring of the harvest of species such as starfish, sea urchins, sponges, and worms,” and would allow the state to protect “amphibians (frogs) and invertebrates, such as starfish, sea urchins, anemones, jellyfish and sponges.” No mention of bees or insects anywhere in the definition or legislative history, but the court nonetheless held that a bee is “terrestrial invertebrate” and the definition of fish includes “invertebrate,” so a bee is a fish.

Of course, the court did not hold that a bee is a fish for all purposes. It just held that a bee satisfies the definition of “fish” in the California endangered species statute, so it can be protected. But still, it seems odd to acknowledge that a fish is, “of course,” “commonly understood” to mean an aquatic creature, then review legislative history that references full-time aquatic creatures like mollusks (snails, clams, squids) and crustaceans (crabs lobsters, shrimp) and part-time aquatic creatures (amphibians), only to then conclude that an insect that, as far as I know, avoids the water entirely, is a fish. I am all for reading the terms of a statute literally, but this seems a bit much for me.

“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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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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In life, obey the “golden rule;” at trial, avoid it.

By: Peter J. Gallagher (LinkedIn)

It is not often that my fondness for both hip hop and interesting legal decisions collide, but the Appellate Division’s recent decision in Morgan v. Maxwell is one such occasion. The lead defendant in Morgan was Willie Maxwell II, known to his fans as Fetty Wap. And the issue in the case was the so-called golden rule. Not the “do-unto-others” golden rule we teach our children, but the golden rule that prevents attorneys from asking jurors, during closing arguments, to put themselves in the shoes of an injured person and deliver the verdict they would want if they were in that person’s position.

(To be honest, I am not much of a Fetty Wap fan and he settled with plaintiff before the case went to trial so he did not factor much in the appeal. So hip hop and the interesting legal issue are not really colliding here, but please continue reading nonetheless.)

In Morgan, plaintiff worked for defendants – Fetty Wap, his management company, and his record label. There was some disagreement between the parties over plaintiff’s responsibilities, which changed over time, but part of her job eventually involved booking tours and shows for Fetty Wap. A dispute arose between plaintiff and defendants over her compensation in connection with the tours and shows she booked, and plaintiff was eventually fired. A few months later, a story appeared on “Thirty Mile Zone (TMZ), a popular entertainment gossip website,” reporting that “sources close” to defendants told TMZ that plaintiff was fired for misrepresenting herself as Fetty Wap’s booking manager and misappropriating booking fees. A few days later, Fetty Wap’s management company released a statement similar to the reports in the TMZ story.

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