New Jersey Supreme Court To Hear Appeal In Case Involving Defense Counsel That “Friended” Plaintiff On Facebook

by:  Peter J. Gallagher (@pjsgallagher)

Earlier this year, I posted about an ethics grievance that was filed against a defense attorney whose paralegal "friended" a plaintiff on Facebook, which allowed the defense to gain access to information that could be used to impeach the plaintiff at trial. (Click here for my original post.) The Appellate Division decision that was the subject of that post had less to do with the substance of the grievance — whether it was unethical to do what the paralegal did — and more about the strange procedural history of the grievance.

The Secretary of the local Ethics Committee originally refused to docket the grievance (which the Secretary is allowed to do if the Secretary, in consultation with a public member of the Ethics Committee, makes an initial determination that no ethics rules were violated), but plaintiff then went to the Director of the Office of Attorney Ethics ("OAE") with more information and convinced the OAE to investigate. Defense counsel argued that this violated the so-called “no appeal” portion of the New Jersey Court Rules, which prohibits appeals from decisions declining to docket ethics grievances. Defense counsel made this argument in a complaint that he filed in the Chancery Division, but the complaint was dismissed for lack of jurisdiction because, according to the trial court and the Appellate Division, the New Jersey Supreme Court has exclusive jurisdiction over matters involving the disciplining of attorneys.

Now the New Jersey Supreme Court has agreed to hear the case to resolve the following question:

Does the Director of the Office of Attorney Ethics have the authority to proceed with a grievance after a District Ethics Committee Secretary (with concurrence by a designated public member) has declined a grievance, pursuant to Rule 1:20-3(e)(3)?

As I mentioned in my prior post, it seems like the more interesting question is whether defense counsel's conduct was unethical, but we will not get an answer to this question until the New Jersey Supreme Court clears up this  procedural issue.And, we will not get an answer at all if the New Jersey Supreme Court agrees with defense counsel and finds that it was improper for the OAE to investigate the grievance after the Secretary of the Ethics Committee refused to docket it.

Stay tuned for more on this case.

Ethics Grievance Against Defense Lawyer Who “Friended” Plaintiff Will Continue

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.

Continue reading “Ethics Grievance Against Defense Lawyer Who “Friended” Plaintiff Will Continue”

When, If Ever, Can Judges Be Social Media “Friends” With Attorneys?

by: Peter J. Gallagher (@pjsgallagher)

Please check out a recent article I wrote for law360.com on whether judges can be “friends” with attorneys on Facebook or other social media without running afoul of the relevant ethics rules. Here is the opening paragraph:

“Social media has become a part of most lawyers’ personal and professional lives. The same is true for many judges. However, it is still not clear when, if at all, it is appropriate for a judge to be “friends” with a lawyer on social media, particularly when that lawyer appears regularly before the judge. While it is certainly true that, as some courts and ethics committees have observed, social media is fraught with peril for judges, no uniform rule has emerged on the issue. Some jurisdictions prohibit judges from being ‘friends’ with any lawyer who appears regularly before them, while others donot prohibit the practice unless the social media ‘friendship’ also implicates one of the canons of the Code of Judicial Conduct. The latter seems to be the better approach, but it has not been universally adopted and it is not clear that it ever will be.”

Check out the rest of the article here.