New Jersey Supreme Court Sides With Attorney in Facebook Ethics Case

In the Matter of John J. Robertelli (D-126-19/084373) (Decided September 21, 2021), the Supreme Court of New Jersey dismissed ethics charges against an attorney who allegedly used his paralegal to contact an opposing party via Facebook. While attorneys can no longer plead ignorance regarding social media, the court held that the attorney’s unfamiliarity with Facebook’s privacy settings when the alleged violation occurred in 2008 warranted dismissal of the charges. “What attorneys know or reasonably should know about Facebook and other social media today is not a standard that we can impute to Robertelli in 2008 when Facebook was in its infancy,” the New Jersey Supreme Court held.

Facts of In the Matter of John J. Robertelli

Respondent John Robertelli represented a public entity and public employee in a personal-injury action brought by Dennis Hernandez. During the course of internet research, Robertelli’s paralegal forwarded a flattering message to Hernandez, and Hernandez unwittingly granted her “friend” status, giving her access to his personal private information.

As a result, the Office of Attorney Ethics (OAE) brought disciplinary charges against attorney Robertelli for a violation of New Jersey Rule of Professional Conduct 4.2 (RPC 4.2) and other RPCs. The matter proceeded before a Special Master, who heard three days of testimony in 2018. Robertelli testified that he had little knowledge or understanding of Facebook at the time and never knowingly authorized his paralegal to communicate with Hernandez to secure information that was not publicly available.

The Special Master found that the conflicting testimony between Robertelli and his paralegal about the exact nature of their conversations a decade earlier was the product of the natural dimming of memories due to the passage of time. The Special Master, in particular, found that Robertelli in 2008 did not have an understanding of Facebook’s privacy settings or Facebook-speak, such as “friending.” The Special Master held that the OAE did not prove by clear and convincing evidence that Robertelli violated the RPCs and dismissed the charges.

The Disciplinary Review Board split, with six members voting to sustain the charges against Robertelli (four in favor of an admonition and two in favor of a censure) and three members voting to dismiss the charges.

NJ Supreme Court’s Decision in In the Matter of John J. Robertelli

The New Jersey Supreme Court found that the OAE failed to establish by clear and convincing evidence that Robertelli violated the RPCs. Accordingly, it held that the disciplinary charges must be dismissed.

In support of its decision, the court emphasized the Facebook was not widely used at the time of the alleged violation. “The charged violation occurred more than a decade ago, when the workings of a newly established social media platform — — were not widely known,” Justice Barry T. Albin wrote on behalf of the unanimous court.

While the court found that Robertelli’s misunderstanding of the workings of the social media platform were excusable, it noted that this is no longer the case. “Robertelli may have had a good faith misunderstanding about the nature of Facebook in 2008, as the special master found; but there should be no lack of clarity today about the professional strictures guiding attorneys in the use of Facebook and other similar social media platforms,” Justice Albin wrote.

“When represented Facebook users fix their privacy settings to restrict information to ‘friends,’ lawyers cannot attempt to communicate with them to gain access to that information without the consent of the user’s counsel,” he added. “That is the universal view adopted by jurisdictions that have addressed the issue.”

The New Jersey Supreme Court plans to refer the matter to the Advisory Committee on Professional Ethics for further consideration. The committee will then decide whether to recommend any additional social media guidelines or amendments to the Rules of Professional Conduct.

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