Lawyers Accused of Facebook Spying Can Face Ethics Complaint, State High Court Rules
New Jersey’s highest court ruled Tuesday that two defense lawyers accused of spying on a plaintiff’s Facebook page can be prosecuted for attorney misconduct.
The case dealt with what what the court described as a “novel ethical issue.” Two defense attorneys in New Jersey are accused of snooping on the private Facebook account of a plaintiff suing their client. The Facebook account was at first publicly viewable. But after the plaintiff tightened the settings and put his profile page behind a privacy wall, the lawyers didn’t stop monitoring it. A paralegal at their firm was able to get access by sending a Facebook friend request to the plaintiffs without revealing her employer.
The plaintiff, Dennis Hernandez, was suing the Borough of Oakland in Bergen County over injuries he claimed he sustained when a police car allegedly struck him in 2007. The two attorneys, John J. Robertelli and Gabriel Adamo, represented Oakland. Mr. Hernandez, according to the opinion, figured out the connection when the defense lawyers “sought to add the paralegal as a trial witness and disclosed printouts” from his Facebook page, according to the court’s opinion.
The New Jersey Supreme Court wasn’t deciding if the two lawyers violated ethics or should face sanction. The court was ruling on whether the head of the state’s attorney disciplinary body could prosecute the lawyers for alleged Facebook spying after a regional disciplinary body chose to drop the case. The local body didn’t think the lawyers’ actions, even if proven, constituted unethical conduct. The director of the New Jersey Office of Attorney Ethics, an arm of the state judiciary, disagreed and filed a complaint against the defense attorneys.
The state’s high court Tuesday unanimously ruled that the misconduct case could go forward. (You can read the opinion here.)
The complaint filed by the Office of Attorney Ethics director accuses the two lawyers of communicating with a represented party without proper consent and engaging in conduct “involving dishonesty, fraud, deceit or misrepresentation,” among other ethics charges.
The two lawyers charged in the complaint claimed that they had “acted in good faith” and “had not committed any unethical conduct.” In their explanation of what happened, they said they were “unfamiliar with the different privacy settings on Facebook.”
Michael S. Stein, an attorney representing the two lawyers, said that while the ruling didn’t go their way, the opinion underscored a lack of “playbook or precedent for how these attorneys should have dealt with the circumstances they were confronted with in 2008.”
The next big step in the slow-moving litigation is a hearing on the merits of ethics complaint, Mr. Stein said.
In the opinion, New Jersey Chief Justice Stuart Rabner noted the unusual nature of the attorney ethics probe in question: “No reported case law in our State addresses the sort of conduct alleged,” he wrote.
Bar association guidelines have discouraged lawyers from monitoring personal profile pages of jurors, witnesses and opposing parties if access to the content requires special permission.
