The Social Media Minefield

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May 18, 2020

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Legal Ethics | Social Media

Disciplinary Review Board determines that ignorance is no defense, imposes discipline based on Facebook “friending,” and recommends policy on use of social media to investigate parties and witnesses

It is no secret that the internet, and social media in particular, affords attorneys with the opportunity
to investigate adversaries, opposing parties, and third-party witnesses. However, a new decision from the New Jersey Disciplinary Review Board (DRB) reaffirms restrictions on this activity and makes it clear that those who use social media as an investigatory tool do so at their own peril.

In In re Robertelli, DRB 19-266, an attorney was retained to defend the Borough of Oakland, its police department, and an individual officer against claims that the plaintiff had been struck by the officer’s car while doing push-ups in the parking lot of a police station. To investigate the claim, the attorney’s paralegal, with the attorney’s knowledge, accessed and monitored the plaintiff’s public Facebook profile.

At some point during the case, the plaintiff changed his privacy settings, and the profile ceased to be public. Accounts from the attorney, the paralegal, and the plaintiff differ on what happened next, but the DRB found it was “undisputed” that: (1) a conversation occurred between the attorney and the paralegal after the change in privacy settings; (2) the paralegal sought permission from the attorney to further surveil the plaintiff on Facebook; (3) the attorney initially told the paralegal to “hold off” before subsequently giving her permission to proceed; and (4) the paralegal exchanged messages with the plaintiff to facilitate her access to the Facebook profile. While the paralegal and the plaintiff differed on the specifics of the exchange, it was also undisputed that the paralegal ultimately gained access to nonpublic information (i.e., he plaintiff’s private Facebook profile) by way of a “friend request.” Thereafter, the paralegal discovered a video of the plaintiff wrestling, which the attorney then produced in discovery as potential evidence for the defense.

When the plaintiff discovered how the video had been obtained, he filed an ethical grievance against the attorney. The District Ethics Committee initially declined to docket the grievance, but the Office of Attorney Ethics (OAE) later overruled that decision and proceeded with a formal ethics complaint of its own.1 The matter was heard before a special master, who declined to impose discipline based largely on his finding that, at the time the friend request was sent, the attorney did not understand the video was nonpublic because he was “uninformed, not knowledgeable, and indeed largely ignorant concerning information available on and obtained from the internet.”

Following a de novo review, the DRB disagreed and found multiple ethical violations, including RPC 4.2 (communication with a represented party), RPC 5.3 (failure to supervise a nonlawyer employee), and RPC 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation.2

In so doing, the Board stated:

It does not matter, in this context, who initiated the friend request, what ‘friend request’ was understood to mean at the time, or who sent whom the private message first. The Rule [RPC 4.2] is intended to protect the represented party and, therefore, the duty to refrain from such prohibited communications falls on this opposing attorney and his subordinates – in this case, respondent and his paralegal.

Importantly, the DRB also specifically held that ignorance of the medium (Facebook) was not a defense. In this regard, the panel focused on the moment the paralegal advised the attorney of a change in the plaintiff’s privacy settings, when the attorney initially told the paralegal to “hold off” before directing her to proceed. According to the DRB, it was at that moment that the attorney “failed to take reasonable action to avoid or mitigate the consequences of [the paralegal’s] conduct” or to “take reasonable action to learn more” about what was happening. In the Board’s words: “Ignorance cannot be used as a shield.”

The DRB found the attorney’s conduct grave enough to warrant a censure. However, in view of the mitigating factors, including the attorney’s “otherwise unblemished career in twenty-nine years at the bar,” a divided Board recommended an admonition. Notably, however, the Board split over both the existence of a violation and the quantum of discipline warranted, and the level of punishment recommended was endorsed by only a plurality of members.3

Furthermore, the Board recommended three policies to the Supreme Court. First, it urged the Court to announce that any attempt by an attorney or their subordinates, agents, or proxies (including the client) “to gain access to a represented party’s otherwise private social media constitutes improper communication, in violation of RPC 4.2.” Second, the Board proposed that attempts to gain access to the social media of any individual (presumably including third-party eyewitnesses) “without explicitly disclosing who is making the request, and the specific purpose of the request, constitutes conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of RPC 8.4(c).” Third, the Board advised that “[a]ccessing and viewing publicly available information on someone’s social media page is appropriate.”

This decision, if ratified and adopted by the Supreme Court, offers guidance, but by no means does it address all the ethical pitfalls associated with social media. Indeed, application of our rules may vary as to different social media platforms and fact patterns involving everything from attorney advertising to the investigation of potential jurors. If you have questions regarding the use of social media in your practice, the attorneys at Donnelly Minter & Kelly are ready to help.

1Litigation ensued over the OAE’s authority to do so, culminating in a 2016 decision in which the Supreme Court upheld the OAE’s right to review a grievance following a declination to docket by a District Ethics Committee. See Robertelli v. N.J. Office of Attorney Ethics, 224 N.J. 470, 474 (2016).

2The Board also declined to impose discipline under RPC 5.1(b) and (c) (failure to supervise a subordinate attorney), RPC 8.4(a) (assisting or inducing a violation of the RPCs), and RPC 8.4(d) (engaging in conduct prejudicial to the administration of justice).

3Specifically, four members voted to impose an admonition, two members voted to impose a censure, and three members voted to adopt the special master’s recommendation that all charges be dismissed.

Jared J. Limbach, Esq.
Seth A. Abrams, Esq.

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