In the Matter of John Robertelli (084373)
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Opinion
SYLLABUS
This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Court. In the interest of brevity, portions of an opinion may not have been summarized.
In the Matter of John J. Robertelli (D-126-19) (084373)
February 1, 2021 -- Decided September 21, 2021
ALBIN, J., writing for a unanimous Court.
The issue in this attorney disciplinary case is whether Respondent John Robertelli violated Rule of Professional Conduct (RPC) 4.2, which prohibits a lawyer from communicating with another lawyer’s client about the subject of the representation without the other lawyer’s consent. 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. The Office of Attorney Ethics (OAE) brought disciplinary charges against Robertelli, asserting that he violated RPC 4.2 when his paralegal sent a Facebook message to, and was granted “friend” status by, Dennis Hernandez, who had filed an action against Robertelli’s client. The charged violation occurred more than a decade ago, when the workings of a newly established social media platform -- Facebook.com -- were not widely known.
In November 2007, Robertelli represented the Borough of Oakland and an Oakland police sergeant in a personal-injury lawsuit filed by Hernandez. In preparing a defense, Robertelli requested that Valentina Cordoba, a paralegal, conduct internet research into Hernandez’s academic and employment background, and any criminal history. As part of that research, Cordoba gained access to Hernandez’s private Facebook page when Hernandez designated her as a “friend.” At that time, Hernandez did not know that Cordoba was working for the law firm representing the parties he was suing.
Cordoba downloaded postings from Hernandez’s Facebook page that included a video showing Hernandez wrestling. The defense believed that the wrestling episode may have occurred after Hernandez’s accident. Robertelli forwarded to Hernandez’s attorney, Michael Epstein, the Facebook postings downloaded by Cordoba. In a letter to Robertelli, Epstein accused him of violating RPC 4.2.
In May 2010, Hernandez filed a grievance with the District Ethics Committee. The Secretary of the Committee, with the concurrence of a non-lawyer public member, concluded that Hernandez’s “grievance, even if proven, would not constitute unethical conduct,” and therefore declined to docket the grievance for full review. 1 In July 2010, Epstein wrote to ask the OAE Director to investigate the “unethical conduct” of Robertelli. The OAE conducted an investigation and filed a complaint against Robertelli alleging that he violated several RPCs. At an April 2018 hearing before a Special Master, the testimony highlighted that Facebook in 2008 was unknown terrain to many attorneys.
Cordoba testified that she had a Facebook page, which did not identify her as a paralegal at Robertelli’s firm. She monitored Hernandez’s Facebook page, which at first was open to the public, and she reported to Robertelli about the public postings. But Hernandez’s Facebook page later turned private, and she told Robertelli she no longer had access without sending a “friend” request. Cordoba claimed that Robertelli eventually gave her the green light to send Hernandez “a general message” and to proceed to monitor Hernandez’s Facebook page. She believed, however, that despite her efforts to explain Facebook to Robertelli, he did not grasp the significance of a “friend” request. Cordoba, via Facebook, then forwarded Hernandez a message stating that he looked like one of her favorite hockey players, and Hernandez sent her a “friend” request.
Hernandez testified that his Facebook page was private -- and never public -- during the lawsuit and that Cordoba sent him a “friend” request, which he accepted. Because Hernandez deleted his Facebook page during the lawsuit and before he filed his ethics grievance, his Facebook records were not produced at the hearing to credit either Cordoba’s or Hernandez’s version of events.
Robertelli testified that in 2008 he had been practicing law for approximately eighteen years and did not know much about Facebook. He did not know that a Facebook page had different privacy settings or what it meant to be a Facebook “friend.” He believed that the information posted on the internet, including Facebook, was “for the world to see.” He denied directing Cordoba to “friend” Hernandez or to contact or send a message to him. He recalled advising Cordoba to monitor whether Hernandez was placing information about the lawsuit on the internet. He said he had no understanding that Cordoba was communicating directly or indirectly with Hernandez.
The Special Master concluded that the OAE failed to prove by clear and convincing evidence that Robertelli violated the RPCs. The Special Master determined that Robertelli, “an attorney with an unblemished record and a reputation for integrity and professionalism,” reasonably believed that his paralegal was merely exploring “publicly available information for material useful to his client” while his young paralegal, experienced in social networking, “was unaware of potentially applicable ethical strictures.” In concluding that Robertelli “proceeded at all times in good faith,” the Special Master dismissed in their entirety the charges in the disciplinary complaint.
Following a de novo review of the record, six members of the Disciplinary Review Board (DRB) determined that Robertelli violated the RPCs. 2 HELD: *After conducting a de novo review of the record and affording deference to the credibility findings of the Special Master, the Court concludes that the OAE has failed to establish by clear and convincing evidence that Robertelli violated the RPCs. The disciplinary charges must therefore be dismissed.
*Attorneys should know that they may not communicate with a represented party about the subject of the representation -- through social media or in any other manner -- either directly or indirectly without the consent of the party’s lawyer. Today, social media is ubiquitous, a common form of communication among members of the public. Attorneys must acquaint themselves with the nature of social media to guide themselves and their non-lawyer staff and agents in the permissible uses of online research. At this point, attorneys cannot take refuge in the defense of ignorance. The Court refers this issue and any related issues to the Advisory Committee on Professional Ethics for further study and for consideration of amendments to the RPCs.
1. As of early 2008, Robertelli did not know how Facebook functioned, did not know about its privacy settings, and did not know the language of Facebook, such as “friending.” And no jurisdiction had issued a reported ethics opinion giving guidance on the issue before the Court -- whether sending a “friend” request to a represented client without the consent of the client’s attorney constitutes a communication on the subject of the representation in violation of RPC 4.2. The absence of ethical guidance at that time evidently reflected that Facebook had yet to become the familiar social media platform that it is today in the legal community. Further, the Court gives due regard to the Special Master’s credibility findings based on his careful observation of the witness testimony unfolding before his eyes. In the end, based on an independent review of the record, the Court finds that the OAE has not met its burden of proving the disciplinary charges against Robertelli by clear and convincing evidence. (pp. 26-32)
2.
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SYLLABUS
This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Court. In the interest of brevity, portions of an opinion may not have been summarized.
In the Matter of John J. Robertelli (D-126-19) (084373)
February 1, 2021 -- Decided September 21, 2021
ALBIN, J., writing for a unanimous Court.
The issue in this attorney disciplinary case is whether Respondent John Robertelli violated Rule of Professional Conduct (RPC) 4.2, which prohibits a lawyer from communicating with another lawyer’s client about the subject of the representation without the other lawyer’s consent. 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. The Office of Attorney Ethics (OAE) brought disciplinary charges against Robertelli, asserting that he violated RPC 4.2 when his paralegal sent a Facebook message to, and was granted “friend” status by, Dennis Hernandez, who had filed an action against Robertelli’s client. The charged violation occurred more than a decade ago, when the workings of a newly established social media platform -- Facebook.com -- were not widely known.
In November 2007, Robertelli represented the Borough of Oakland and an Oakland police sergeant in a personal-injury lawsuit filed by Hernandez. In preparing a defense, Robertelli requested that Valentina Cordoba, a paralegal, conduct internet research into Hernandez’s academic and employment background, and any criminal history. As part of that research, Cordoba gained access to Hernandez’s private Facebook page when Hernandez designated her as a “friend.” At that time, Hernandez did not know that Cordoba was working for the law firm representing the parties he was suing.
Cordoba downloaded postings from Hernandez’s Facebook page that included a video showing Hernandez wrestling. The defense believed that the wrestling episode may have occurred after Hernandez’s accident. Robertelli forwarded to Hernandez’s attorney, Michael Epstein, the Facebook postings downloaded by Cordoba. In a letter to Robertelli, Epstein accused him of violating RPC 4.2.
In May 2010, Hernandez filed a grievance with the District Ethics Committee. The Secretary of the Committee, with the concurrence of a non-lawyer public member, concluded that Hernandez’s “grievance, even if proven, would not constitute unethical conduct,” and therefore declined to docket the grievance for full review. 1 In July 2010, Epstein wrote to ask the OAE Director to investigate the “unethical conduct” of Robertelli. The OAE conducted an investigation and filed a complaint against Robertelli alleging that he violated several RPCs. At an April 2018 hearing before a Special Master, the testimony highlighted that Facebook in 2008 was unknown terrain to many attorneys.
Cordoba testified that she had a Facebook page, which did not identify her as a paralegal at Robertelli’s firm. She monitored Hernandez’s Facebook page, which at first was open to the public, and she reported to Robertelli about the public postings. But Hernandez’s Facebook page later turned private, and she told Robertelli she no longer had access without sending a “friend” request. Cordoba claimed that Robertelli eventually gave her the green light to send Hernandez “a general message” and to proceed to monitor Hernandez’s Facebook page. She believed, however, that despite her efforts to explain Facebook to Robertelli, he did not grasp the significance of a “friend” request. Cordoba, via Facebook, then forwarded Hernandez a message stating that he looked like one of her favorite hockey players, and Hernandez sent her a “friend” request.
Hernandez testified that his Facebook page was private -- and never public -- during the lawsuit and that Cordoba sent him a “friend” request, which he accepted. Because Hernandez deleted his Facebook page during the lawsuit and before he filed his ethics grievance, his Facebook records were not produced at the hearing to credit either Cordoba’s or Hernandez’s version of events.
Robertelli testified that in 2008 he had been practicing law for approximately eighteen years and did not know much about Facebook. He did not know that a Facebook page had different privacy settings or what it meant to be a Facebook “friend.” He believed that the information posted on the internet, including Facebook, was “for the world to see.” He denied directing Cordoba to “friend” Hernandez or to contact or send a message to him. He recalled advising Cordoba to monitor whether Hernandez was placing information about the lawsuit on the internet. He said he had no understanding that Cordoba was communicating directly or indirectly with Hernandez.
The Special Master concluded that the OAE failed to prove by clear and convincing evidence that Robertelli violated the RPCs. The Special Master determined that Robertelli, “an attorney with an unblemished record and a reputation for integrity and professionalism,” reasonably believed that his paralegal was merely exploring “publicly available information for material useful to his client” while his young paralegal, experienced in social networking, “was unaware of potentially applicable ethical strictures.” In concluding that Robertelli “proceeded at all times in good faith,” the Special Master dismissed in their entirety the charges in the disciplinary complaint.
Following a de novo review of the record, six members of the Disciplinary Review Board (DRB) determined that Robertelli violated the RPCs. 2 HELD: *After conducting a de novo review of the record and affording deference to the credibility findings of the Special Master, the Court concludes that the OAE has failed to establish by clear and convincing evidence that Robertelli violated the RPCs. The disciplinary charges must therefore be dismissed.
*Attorneys should know that they may not communicate with a represented party about the subject of the representation -- through social media or in any other manner -- either directly or indirectly without the consent of the party’s lawyer. Today, social media is ubiquitous, a common form of communication among members of the public. Attorneys must acquaint themselves with the nature of social media to guide themselves and their non-lawyer staff and agents in the permissible uses of online research. At this point, attorneys cannot take refuge in the defense of ignorance. The Court refers this issue and any related issues to the Advisory Committee on Professional Ethics for further study and for consideration of amendments to the RPCs.
1. As of early 2008, Robertelli did not know how Facebook functioned, did not know about its privacy settings, and did not know the language of Facebook, such as “friending.” And no jurisdiction had issued a reported ethics opinion giving guidance on the issue before the Court -- whether sending a “friend” request to a represented client without the consent of the client’s attorney constitutes a communication on the subject of the representation in violation of RPC 4.2. The absence of ethical guidance at that time evidently reflected that Facebook had yet to become the familiar social media platform that it is today in the legal community. Further, the Court gives due regard to the Special Master’s credibility findings based on his careful observation of the witness testimony unfolding before his eyes. In the end, based on an independent review of the record, the Court finds that the OAE has not met its burden of proving the disciplinary charges against Robertelli by clear and convincing evidence. (pp. 26-32)
2. Robertelli may have had a good faith misunderstanding about the nature of Facebook in 2008, 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. 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. Both sending a “friend” request and enticing or cajoling the represented client to send one are prohibited forms of conduct under RPC 4.2, as other jurisdictions have determined under their own rules of court. (pp. 32-35)
3. Lawyers should now know where the ethical lines are drawn. Lawyers must educate themselves about commonly used forms of social media to avoid the scenario that arose in this case. The defense of ignorance will not be a safe haven. And the Court reminds the bar that attorneys are responsible for the conduct of the non-lawyers in their employ or under their direct supervision. Under RPC 5.3, attorneys must make reasonable efforts to ensure that their surrogates -- including investigators or paralegals -- do not 3 communicate with a represented client, without the consent of the client’s attorney, to gain access to a private Facebook page or private information on a similar social media platform. (pp. 35-36)
4. The Court refers to the Advisory Committee on Professional Ethics, for further consideration, the issues raised in this opinion. After its review, the Committee shall advise the Court whether it recommends any additional social media guidelines or amendments to the RPCs consistent with this opinion. (p. 36)
The disciplinary charges against Respondent are DISMISSED.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON, FERNANDEZ-VINA, SOLOMON, and PIERRE-LOUIS join in JUSTICE ALBIN’s opinion.
4 SUPREME COURT OF NEW JERSEY D-126 September Term 2019 084373
In the Matter of
John J. Robertelli,
an Attorney at Law
On an order to show cause why respondent should not be disbarred or otherwise disciplined.
Argued Decided February 1, 2021 September 21, 2021
Steven J. Zweig, Deputy Ethics Counsel, argued the cause on behalf of the Office of Attorney Ethics (Steven J. Zweig, on the briefs).
Michael S. Stein argued the cause on behalf of respondent (Pashman Stein Walder Hayden, attorneys; Michael S. Stein and Janie Byalik, on the briefs).
JUSTICE ALBIN delivered the opinion of the 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
1 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.”
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.
2 As a result, the Office of Attorney Ethics (OAE) brought disciplinary
charges against attorney Robertelli for a violation of 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.
After conducting a de novo review of the record and affording deference
to the credibility findings of the Special Master, we conclude that the OAE has
3 failed to establish by clear and convincing evidence that Robertelli violated the
RPCs. The disciplinary charges must therefore be dismissed.
We add the following. Attorneys should know that they may not
communicate with a represented party about the subject of the representation --
through social media or in any other manner -- either directly or indirectly
without the consent of the party’s lawyer. Today, social media is ubiquitous, a
common form of communication among members of the public. Attorneys
must acquaint themselves with the nature of social media to guide themselves
and their non-lawyer staff and agents in the permissible uses of online
research. At this point, attorneys cannot take refuge in the defense of
ignorance. We refer this issue and any related issues to the Advisory
Committee on Professional Ethics for further study and for consideration of
amendments to our RPCs.
I.
A.
We rely on the record developed before the Special Master. We begin
with the facts that are not in dispute.
In November 2007, Robertelli, a partner at the law firm of Rivkin
Radler, LLP, represented the Borough of Oakland and an Oakland Police
Department sergeant in a personal-injury lawsuit filed in Superior Court by
4 Dennis Hernandez. Hernandez claimed that while he was doing push-ups in
the police station’s parking lot, the sergeant’s vehicle struck him, causing
permanent physical injuries and the loss of an athletic scholarship.
In preparing a defense, Robertelli requested that Valentina Cordoba, a
paralegal in the firm, conduct internet research into Hernandez’s academic and
employment background, and any criminal history. As part of that research,
Cordoba gained access to Hernandez’s private Facebook page when Hernandez
designated her as a “friend.” At that time, Hernandez did not know that
Cordoba was working for the law firm representing the parties he was suing.
Cordoba downloaded postings from Hernandez’s Facebook page that included
a video showing Hernandez wrestling with his brother. The defense believed
that the wrestling episode may have occurred after Hernandez’s accident.
With that information in hand, Gabriel Adamo, an associate at Rivkin
Radler, deposed Hernandez. Afterwards, Robertelli forwarded to Hernandez’s
attorney, Michael Epstein, the Facebook postings downloaded by Cordoba. In
a letter to Robertelli, Epstein accused him of violating RPC 4.2 by
communicating with his client, through Facebook, without his consent about
the subject of the representation. Hernandez would later testify that the
wrestling video downloaded by Cordoba predated his accident and had been
posted by a “friend.”
5 The Superior Court judge assigned to the case barred the use of the
Facebook postings because the information was disclosed after the end date for
the completion of discovery but made no finding of an ethical violation, as
urged by Epstein.
In May 2010, Hernandez filed a grievance with the District II-B Ethics
Committee, alleging that Robertelli and Adamo violated the RPCs by having
their paralegal directly contact him through Facebook without the consent of
his counsel. The Secretary of the District Ethics Committee, with the
concurrence of a non-lawyer public member, concluded that Hernandez’s
“grievance, even if proven, would not constitute unethical conduct,” and
therefore declined to docket the grievance for full review by the Committee.
See R. 1:20-3(e)(3).
By letter, on July 30, 2010, Epstein asked the OAE Director to
investigate the “unethical conduct” of both Robertelli and Adamo. Epstein
claimed that, during a lawsuit and without his consent, the two attorneys
“directly contacted” his client through their paralegal who -- without
disclosing her position -- requested that the client “friend” her, allowing her to
access his private Facebook page.
The OAE conducted an investigation and, in November 2011, filed a
complaint against Robertelli and Adamo, alleging violations of RPC 4.2
6 (communicating with a person represented by counsel); RPC 5.1(b) and (c)
(failure to supervise a subordinate lawyer -- charged only against Robertelli);
RPC 5.3(a), (b), and (c) (failure to supervise a non-lawyer assistant); RPC
8.4(a) (violation of the RPCs by inducement or through the acts of another);
RPC 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation);
and RPC 8.4(d) (conduct prejudicial to the administration of justice).
In January 2012, Robertelli and Adamo answered the complaint,
asserting that they acted in good faith and committed no unethical conduct.
Robertelli admitted that he asked Cordoba “to perform a broad and general
internet search regarding Hernandez” in defending the personal-injury action.
But he explained that he did not “understand how Facebook worked” at the
time and believed that “Cordoba was accessing information that was publicly
available” by clicking “the ‘friend’ button.” Robertelli apologized for any
error committed through inadvertence and denied engaging in any knowing or
purposeful misconduct.
Robertelli and Adamo then requested that the OAE withdraw its
complaint in light of the District Ethics Committee’s decision not to file
charges. When the OAE refused to do so, Robertelli and Adamo filed an
action in Superior Court seeking a declaration that the OAE Director lacked
authority to review the District Ethics Committee’s decision. See Robertelli v.
7 OAE, 224 N.J. 470, 475 (2016). The trial court dismissed the action because
the New Jersey Supreme Court has exclusive jurisdiction over attorney
disciplinary matters, and the Appellate Division affirmed. Id. at 476.
We held that, although the OAE Director does not have appellate
authority to override a District Ethics Committee decision declining to docket
a grievance, the Director does have the independent power, under our court
rules, to investigate and bring disciplinary charges against an attorney -- and to
prosecute those charges. Id. at 486-91. We added that “[w]e anticipate that
the Director will use that power sparingly to address novel and serious
allegations of unethical conduct.” Id. at 490. We also noted that “[t]his matter
presents a novel ethical issue” and that “[n]o reported case law in our State
addresses the question.” Id. at 487.
B.
In March 2017, this Court appointed Michael Kingman to serve as the
Special Master in this case. During three consecutive days in April 2018, the
Special Master heard testimony about the circumstances surrounding
Cordoba’s gaining access to Hernandez’s Facebook page, about Robertelli’s
knowledge of Facebook, and about his conversations with and supervision of
Cordoba a decade earlier. The passage of time challenged the memories of the
8 witnesses, and the Special Master attempted to make sense of the conflicting
accounts.
A short primer on Facebook, its growth in the world of social media, and
the public and private information made available by its users will be helpful
in elucidating the issues before us. 1
1.
Facebook is a social media platform on the internet that permits users to
post and share information, including messages, articles, and other writings;
photographs; and video recordings. Users can share information either with
the general public or, by setting privacy restrictions, with a more limited
audience, such as Facebook “friends.” A Facebook “friend” is not a friend in
the colloquial sense. Any person granted access to the more privately guarded
information by the user is deemed a “friend” in the language of Facebook. A
person becomes a Facebook “friend” either by sending the user a “friend”
request that the user accepts by the click of a button, or by receiving a “friend”
request from the user that the person accepts by the click of a button.
1 “Social media” is defined as “forms of electronic communication (such as websites for social networking and microblogging) through which users create online communities to share information, ideas, personal messages, and other content (such as videos).” Social Media, Merriam-Webster, https://www. merriam-webster.com/dictionary/social%20media (last visited Aug. 4, 2021).
9 Information restricted to Facebook “friends” is not available to the general
public.
Facebook was launched in 2004 to a limited scope of users -- college and
university students and later high school students. 2 Not until the latter part of
2006 was Facebook membership opened to the general public. 3 In July 2007,
Facebook had 30 million users worldwide; 4 in August 2008, 100 million
users;5 and as of June 2021, 2.9 billion users.6
In 2008, only fifteen percent of lawyers who responded to the American
Bar Association’s Legal Technology Survey reported personally maintaining a
2 Alexis C. Madrigal, Before It Conquered the World, Facebook Conquered Harvard, The Atlantic (Feb. 4, 2019), https://www.theatlantic.com/technology/ archive/2019/02/and-then-there-was-thefacebookcom/582004. 3 Our History, Facebook, https://about.facebook.com/company-info (last visited Aug. 4, 2021). 4 Sarah Phillips, A Brief History of Facebook, The Guardian (July 25, 2007), https://www.theguardian.com/technology/2007/jul/25/media.newmedia. 5 Associated Press, Number of Active Users at Facebook over the Years, yahoo!news (May 1, 2013), https://news.yahoo.com/number-active-users- facebook-over-230449748.html. 6 Press Release, Facebook, Facebook Reports Second Quarter 2021 Results (July 28, 2021), https://investor.fb.com/investor-news/press-release-details/ 2021/Facebook-Reports-Second-Quarter-2021-Results.
10 presence on social media. 7 In contrast, by 2020, seventy-seven percent of
lawyers reported using social media for professional purposes. 8
The testimony at the hearing before the Special Master highlighted that
Facebook in 2008 was unknown terrain to many attorneys. In line with that
assessment, Cordoba stated that “Facebook was in its infancy” in 2008, that
Robertelli did not understand Facebook’s “terminology” or the privacy settings
for a Facebook page, and that his overall comprehension on the subject was
“maybe a two” out of ten.
Robertelli testified that in 2008 he did not have a social media account
and had a “[m]inimum” understanding of Facebook. His associate, Gabriel
Adamo, similarly stated that he did not know “what it meant to be a friend on
Facebook” and thought Facebook was another venue for information generally
available on the internet. Even Hernandez’s counsel, Michael Epstein,
admitted that he was “relatively unfamiliar with Facebook at that time” and did
not recall having a Facebook profile.
7 Reginald Davis, Getting Personal, A.B.A. J. (Aug. 2, 2009), https://www.abajournal.com/magazine/article/getting_personal. 8 Allison C. Shields Johs, 2020 Websites & Marketing, A.B.A. (Nov. 9, 2020), https://www.americanbar.org/groups/law_practice/publications/techreport/ 2020/webmarketing.
11 With that background in mind, we turn to the critical testimony in this
disciplinary matter.
2.
Cordoba testified that while she did general internet research on the
Hernandez personal-injury case for Robertelli in 2008, she had a Facebook
page -- the same one she had before she graduated from college in 2004. The
page did not identify her as a paralegal at Rivkin Radler. As a Facebook user,
she monitored Hernandez’s Facebook page, which at first was open to the
public and then turned private. She reported to Robertelli about the public
postings. But when Hernandez’s Facebook page turned private, she told
Robertelli she no longer had access without sending Hernandez a “friend”
request. She recalled Robertelli telling her to hold off sending the request
until he checked with the insurance adjuster. But she was uncertain whether
Robertelli understood the mechanics of Facebook, the privacy settings for a
Facebook page, or the meaning of a “friend” request. Cordoba claimed that,
after Robertelli checked with the adjuster, he gave her the green light to send
Hernandez “a general message” and to proceed to monitor Hernandez’s
Facebook page. She believed, however, despite her efforts to explain
Facebook to Robertelli, he did not grasp the significance of a “friend” request.
12 Cordoba, via Facebook, then forwarded Hernandez a message stating
that he looked like one of her favorite hockey players. Hernandez responded
with some flirtatious messages -- to which Cordoba did not reply -- and sent
her a “friend” request, which she accepted. Cordoba then gained access to
Hernandez’s private Facebook page as one of his six-hundred-plus “friends.”
Hernandez gave a different account from Cordoba’s. Hernandez
testified that his Facebook page was private -- and never public -- during the
lawsuit. Hernandez stated that Cordoba sent him a “friend” request, which he
accepted. Afterwards, according to Hernandez, he messaged Cordoba, asking
her who she was, and she replied that he looked like her favorite hockey
player. Because Hernandez deleted his Facebook page during the lawsuit and
before he filed his ethics grievance, his Facebook records were not produced at
the hearing to credit either Cordoba’s or Hernandez’s version of events.
Robertelli testified that in 2008 he had been practicing law for
approximately eighteen years and was the attorney responsible for the defense
in the Hernandez case. According to Robertelli, at the time that he asked
Cordoba to conduct internet research, he did not know much about Facebook.
He did not know that a Facebook page had different privacy settings or what it
meant to be a Facebook “friend.” He believed that the information Hernandez
posted, or others posted, on the internet, including Facebook, was “for the
13 world to see.” He denied directing Cordoba to “friend” Hernandez or to
contact or send a message to him. He recalled advising Cordoba to monitor
whether Hernandez was placing information about the lawsuit on the internet .
He also remembered that, during a brief conversation, Cordoba told him that
Hernandez’s Facebook “information is now in a different area that [she could]
access by the click of a button.” Cordoba described the website as “the
equivalent of . . . posting something on a bulletin board”; she did not say that
Hernandez’s Facebook privacy settings were changed from public to private or
that she had to send him a “friend” request. Robertelli admitted that he told
Cordoba at first to wait until he spoke with Dawn Mulligan, head of claims and
risk management of the Bergen County Municipal Joint Insurance Fund,9 and
then afterward to “[c]lick on the button and continue to monitor the site.” But,
he said, he had no understanding that Cordoba was communicating directly or
indirectly with Hernandez.
Only after Robertelli released the information downloaded from
Hernandez’s Facebook page in discovery and Epstein charged him with
violating the RPCs did Robertelli learn that Cordoba had directly contacted
Hernandez. By then, Cordoba had joined another law firm in the same
9 The Joint Insurance Fund retained Robertelli to represent the Borough o f Oakland.
14 building as Rivkin Radler. In the building cafeteria, Robertelli encountered
Cordoba, and the two conversed about the Hernandez case. At that point, for
the first time, Cordoba told Robertelli that she had sent a message to
Hernandez.
C.
After hearing three days of testimony and reviewing numerous exhibits,
the Special Master issued a forty-eight-page report in which he concluded that
the OAE failed to prove by clear and convincing evidence that Robertelli
violated the RPCs as alleged in the complaint.10 The Special Master made the
following findings by clear and convincing evidence:
1. “[Robertelli] was ignorant as to the nature and extent of information
available on the internet, and proceeded under the misimpression that” what
Hernandez posted was available “for viewing by the world.”
2. “[Robertelli] had no knowledge or understanding of social
networking privacy settings or ‘friend’ requests.”
3. Cordoba, a young paralegal, knowledgeable about Facebook from her
days as a student, did not educate Robertelli about the new information-sharing
10 The OAE dismissed the charges against Adamo, Robertelli’s associate, at the conclusion of its case.
15 technology because -- through no fault of her own -- “she did not understand
that to be part of her job.”
4. Cordoba engaged in what she viewed as normal research practice,
accessed information, and reported the results to Robertelli.
5. Robertelli viewed the material supplied by Cordoba as if it had been
taken off a “bulletin board” on which it had been posted.
6. Robertelli believed that “people sometimes published information
about themselves on the internet for the world at large to see, and that looking
at that information was part of the due diligence required in handling a
lawsuit.”
7. Robertelli had “a few brief conversations” with Cordoba instructing
her “to ‘monitor’ the Hernandez postings.”
Given the novelty of Facebook, the Special Master also could not find by
clear and convincing evidence that “[Robertelli] knew or should have known
what . . . ‘friending’ meant,” and concluded that the Facebook nomenclature
“was in effect a foreign language to [Robertelli], as it would have been to most
lawyers” at the time.
The Special Master made credibility findings as well. He expressed
“serious doubts about the accuracy of much of the testimony at the hearing,
particularly that of Cordoba,” primarily because of the passage of time. He
16 noted that Cordoba’s “uncertain recollection” needed to be refreshed at various
times and concluded that “[h]er interpretation today of a few brief
conversations with [Robertelli]” could “hardly be relied upon to meet” the
clear-and-convincing-evidence standard. 11 Indeed, he emphasized that no
“definitive conclusions” could be reasonably drawn “from fragments of a
conversation partially recalled from ten years earlier.”
The Special Master observed that Robertelli’s instruction to Cordoba to
put on hold the research until he checked with the insurance adjuster logically
suggested that Robertelli needed to secure the insurer’s financial commitment
to cover such work. The Special Master also indicated that the failure of
Hernandez’s counsel -- the grievant -- to preserve his client’s “Facebook
settings and contents” hobbled the factfinding process. For example, the
information, if not deleted, would have revealed whether Hernandez’s
Facebook page, at first, was open to the public and whether Hernandez or
Cordoba initiated the “friend” request.
In the end, the Special Master determined, by clear and convincing
evidence, that Robertelli, “an attorney with an unblemished record and a
11 The Special Master gave Cordoba her due, stating that “she tried to be [truthful]” in her testimony during which “she was afflicted with laryngitis and a severe cold.” We do not believe that the Special Master was suggesting that Cordoba was not credible because she was under the weather.
17 reputation for integrity and professionalism,” reasonably believed that his
paralegal was merely exploring “publicly available information for material
useful to his client” while his young paralegal, experienced in social
networking, “was unaware of potentially applicable ethical strictures.” In
concluding that Robertelli “proceeded at all times in good faith,” the Special
Master dismissed in their entirety the charges in the disciplinary complaint.
Last, the Special Master recommended that this Court adopt a rule “that
attorneys may not directly or indirectly friend someone represented by counsel
without the knowledge and consent of such counsel.”
D.
Following a de novo review of the record, six members of the
Disciplinary Review Board (DRB) determined that Robertelli violated three
RPCs. They concluded that the “facts” supported the findings that (1)
Robertelli directed Cordoba to “communicate[] with a party represented by
counsel, about the litigation, in violation of RPC 4.2”; (2) Robertelli failed to
make reasonable efforts to ensure that a nonlawyer under his supervision acted
in accordance with his own professional obligations and additionally
“‘ratified’ the misconduct by attempting to use the fruits of Cordoba’s
surveillance in the underlying litigation,” in violation of RPC 5.3(a), (b), and
(c); and (3) Cordoba’s “misrepresentation by silence or omission” to gain
18 access to Hernandez’s Facebook page is imputed to Robertelli, constituting a
violation of RPC 8.4(c). 12
Four of those six DRB members -- the plurality -- voted to impose an
admonition, and the other two members, writing a separate opinion, voted to
impose a censure. Three other DRB members, in two separate opinions, voted
to dismiss all the disciplinary charges. The four opinions issued reflect the
different story lines accepted by the DRB members.
The plurality rejected what it viewed as the Special Master’s finding that
Cordoba was “less credible because she was sick during her testimony” or
because she needed to have her memory refreshed with statements she made
earlier. The plurality stated that “[t]his is the rare instance where we do not
accept a credibility determination made by a trier of fact.”
The plurality independently determined that “Cordoba’s version” of her
conversation with Robertelli concerning the Facebook research “is likely more
credible than [his].” The plurality did not accept Robertelli’s reasons for
telling Cordoba to “hold off” doing further research. According to the
plurality, it was “a stretch to believe that, as [Robertelli] recalls, Cordoba
12 The DRB dismissed the RPC 5.1(b) and (c) and RPC 8.4(a) and (d) charges.
19 never used the words ‘public’ or ‘private’ to explain the change” in
Hernandez’s Facebook settings or that “the privacy component [was] so
esoteric that an attorney cannot fathom what it means in the context of a
nascent technology.”
In short, in assessing credibility, the plurality rejected Robertelli’s
account and maintained that “[i]gnorance cannot be used as a shield.”
The two other members in favor of imposing discipline voted for a
censure. In a dissenting opinion, they stated that “[Robertelli] failed to
supervise his assistant when he knew, without question, that she was, at his
instruction, trying to make contact with an adverse represented person.”
(emphasis added). They clearly did not find Robertelli credible in coming to
their conclusion.
3.
Two DRB members, who voted to dismiss the disciplinary complaint,
were unwilling to “second guess” the conclusions of the Special Master “who
had the opportunity to observe the testimony and evaluate the credibility of the
witnesses.” Those two members gave great weight to three “undisputed” facts
on which the Special Master rested his decision: Cordoba “did not explain to
[Robertelli] the various privacy settings on Facebook or explain to him how
20 the settings on that account changed at some point from public to quasi-
private”; Robertelli was “technologically unsophisticated,” “never had a
Facebook page,” and primarily “communicated with his staff in person or by
telephone”; and “Cordoba and [Robertelli] testified that [Robertelli] never
directed Cordoba to contact Hernandez or send any kind of message to him.”
Those DRB members highlighted (1) “the conflicting testimony [and] the
changed recollection of witnesses” over the course of the investigation,
(2) “Hernandez’s deletion of his Facebook page,” and (3) “the flimsy, almost
non-existent evidence that [Robertelli] had meaningful knowledge of the
workings of an embryonic Facebook in 2008.” In their view, the OAE failed
to prove an RPC violation by clear and convincing evidence.
4.
Another DRB member who voted to dismiss the complaint took the
position that Cordoba’s communication to Hernandez “did not relate to the
subject of the lawsuit” and, on that basis alone, concluded that Robertelli did
not violate RPC 4.2. That member questioned whether the information on
Hernandez’s Facebook page -- shared with “600 other people with no
confidential relationship to [him] or his counsel” -- was private. From that
vantage point, the DRB member did not consider that a “potentially damaging
video, placed in the public domain by a [‘friend’ of Hernandez], implicated an
21 attorney-client communication.” He concluded that “the majority decision
would allow RPC 4.2 and RPC 8.4(c) to function as a defensive weapon
inhibiting the truth-seeking process.”
E.
Robertelli filed a petition for review challenging the DRB majority’s
finding that he violated the RPCs and the DRB plurality’s decision to impose
an admonition. The OAE filed a cross-petition challenging the DRB
plurality’s imposition of an admonition. 13 We elected to review this matter on
our own motion and issued an order to show cause “why [Robertelli] should
not be disbarred or otherwise disciplined.” See R. 1:20-16(b) (“The Court
may, on its own motion, decide to review any determination of the Board
where disbarment has not been recommended.”).
II.
Robertelli urges this Court to accept the credibility findings made by the
Special Master and to dismiss the disciplinary charges that have cast a cloud
over his professional reputation for over a decade. He claims that the DRB, in
addition to improvidently casting aside the Special Master’s credibility
13 The OAE also cross-petitioned for review of the DRB’s dismissal of the RPC 8.4(d) charge.
22 findings, did not give sufficient weight to Facebook’s recent emergence on the
social media scene in 2008, to Robertelli’s unfamiliarity with the nature of
Facebook and its terminology, and to the lack of ethical guidance on the issue
before us. What may seem obvious to many today, Robertelli implores, should
not be imputed to his limited understanding of social media in 2008.
The OAE asks this Court to follow the DRB’s decision to impose
discipline on Robertelli for violating RPCs 4.2, 5.3, and 8.4(c) -- and, despite
the DRB’s dismissal of the RPC 8.4(d) charge, to find that Robertelli engaged
in conduct prejudicial to the administration of justice by attempting to gain a
litigation advantage through the use of the improperly obtained wrestling
video. The OAE chides Robertelli for his lack of remorse and for blaming
Hernandez for accepting Cordoba’s “friend” request. The OAE reasons that
Hernandez had no duty to investigate the identity of Cordoba but that
Robertelli had an ethical obligation to supervise his paralegal, regardless of the
novelty of Facebook, and not to communicate with a represented party. The
OAE recommends the imposition of a reprimand.
III.
The ethical charges filed against Robertelli have drawn varied responses
from the disciplinary authorities: the District Ethics Committee declined to
23 docket the charges; the Special Master dismissed the charges after hearing
three days of testimony; and the DRB issued four opinions, one in favor of
imposing an admonition, another in favor of imposing a censure, and two in
favor of dismissing the charges. As the final body to review this more-than-
decade-long case, we start at a familiar place -- our standard of review.
In reviewing an attorney disciplinary determination de novo, as required
by Rule 1:20-16(c), we must independently examine the record to determine
whether an ethical violation is supported by clear and convincing evidence. In
re Pena, 162 N.J. 15, 17 (1999). The DRB is governed by the same standard of
review. See R. 1:20-15(e)(3).
The record in this case was developed during three days of testimony
before a special master who heard from multiple witnesses, particularly those
who played key roles in the events that led to the OAE’s filing of charges
against Robertelli. Similar to our de novo review of a judicial disciplinary
proceeding, here we must give “due” though “not controlling” deference to the
Special Master’s conclusions based on his “assessment of the demeanor and
credibility of witnesses.” See In re Subryan, 187 N.J. 139, 145 (2006)
(quoting In re Disciplinary Procedures of Phillips, 117 N.J. 567, 579-80
(1990)); see also In re Alcantara, 144 N.J. 257, 264 (1995) (agreeing with the
District Ethics Committee’s determination that witnesses were credible and
24 noting “[t]he [District Ethics Committee] observed the witnesses’ demeanor”);
In re Norton, 128 N.J. 520, 535 (1992) (“We agree generally with the [District
Ethics Committee’s] analysis of the events, which is based primarily on its
assessment of the witnesses’ credibility.”). However, when the credibility
findings are not fairly supported by the record, we owe no deference and may
reject those findings. See Subryan, 187 N.J. at 145.
The plurality and dissenting DRB opinions acknowledged the deference
owed to the credibility findings of the Special Master but differed on whether
deference should be afforded to those findings in this case.
Although we are the final triers of fact in a disciplinary matter, a special
master’s credibility findings are generally entitled to some level of deference.
That is so because, as an appellate court, we are left to survey the landscape of
a cold record. We recognize that a special master has “the opportunity to
make first-hand credibility judgments about the witnesses who appear[ed] on
the stand,” see DYFS v. E.P., 196 N.J. 88, 104 (2008), and “to assess their
believability” based on human factors indiscernible in a transcript: the level of
certainty or uncertainty expressed in a vocal response, the degree of eye
contact, whether an answer to a question is strained or easily forthcoming, and
so many other indicia available only by actual observation of the witness, see
Jastram v. Kruse, 197 N.J. 216, 230 (2008).
25 At every point in this disciplinary process -- before the Special Master,
the DRB, and this Court -- the OAE has had the burden of proving by clear and
convincing evidence that Robertelli committed a violation of the RPCs charged
in the complaint. See In re Helmer, 237 N.J. 70, 88 (2019); R. 1:20-
6(c)(2)(B), (C). To satisfy the clear-and-convincing standard, the evidence
must produce in our minds “a firm belief or conviction” that the charges are
true. Helmer, 237 N.J. at 88 (quoting In re Seaman, 133 N.J. 67, 74 (1993)).
In other words, the evidence must be “so clear, direct and weighty and
convincing as to enable [us] to come to a clear conviction, without hesitancy,
of the precise facts in issue.” Id. at 88-89 (quoting Seaman, 133 N.J. at 74).
The “high standard” of proof in an attorney disciplinary action reflects the
“serious consequences” that follow from a finding that an attorney violated the
RPCs. In re Sears, 71 N.J. 175, 197-98 (1976).
We now apply those precepts to the case before us.
IV.
Our thorough review of the record, giving due though not controlling
deference to the credibility findings of the Special Master, leads us to the
conclusion that the OAE has not sustained its burden of proving by clear and
convincing evidence that Robertelli violated the RPCs.
26 1.
Certain facts are basically undisputed. Facebook is ubiquitous today,
but it was not in 2008. Then, Facebook had recently emerged from college
campuses onto a world stage, transforming itself from a youth medium to a
communication/information medium for people of all ages. That swift
transition explains the early generational divide in the understanding of that
new social media platform. In 2008, Cordoba had recently graduated from
college, where she had a Facebook page; on the other hand, Robertelli, then
forty-six years old, had installed a computer on his office desk just two years
earlier.
Robertelli was not tech savvy. He communicated mostly in person or by
telephone. He had, at best, a primitive understanding of social media that led
him to believe that Facebook was just another extension of the internet . Like
many attorneys, he viewed the internet as akin to a public bulletin board or a
public library, where information exposed to the world could be foraged,
collected, and used to advance the interests of a client in litigation. And
indeed, even in the realm of social media, such as Facebook, jurisdictions
appear to universally hold that “[a] lawyer may view the public portion of a
person’s social media profile or view public posts even if such person is
represented by another lawyer.” N.Y. Bar Ass’n, Com. & Fed. Litig. Section,
27 Social Media Ethics Guidelines, No. 4.A (2019); see also, e.g., N.C. Formal
Ethics Op. 2018-5 (2019) (“Lawyers may view the public portion of a person’s
social network presence.”); Me. Ethics Op. 217 (2017) (“Merely accessing
public portions of social media does not constitute a ‘communication’ with a
represented party for the purposes of [the equivalent of RPC 4.2].”).
At least, as of early 2008, Robertelli did not know how Facebook
functioned, did not know about its privacy settings, and did not know the
language of Facebook, such as “friending.” No one disputed at the Special
Master hearing that Facebook was a novelty to the bar in 2008. As of 2008, no
jurisdiction had issued a reported ethics opinion giving guidance on the issue
before this Court -- whether sending a “friend” request to a represented client
without the consent of the client’s attorney constitutes a communication on the
subject of the representation in violation of RPC 4.2. The absence of ethical
guidance at that time evidently reflected that Facebook had yet to become the
familiar social media platform that it is today in the legal community. Many
lawyers in 2008, like Robertelli, had a “[m]inimum” understanding of
Facebook.
Robertelli’s paralegal had retained her Facebook page from college and
knew the language of that new social media platform. One of her job duties at
Rivkin Radler was to conduct internet research, such as background checks
28 surveying a person’s criminal, educational, and employment history, as she did
in the case of Hernandez. It was at that point, when Cordoba used her personal
Facebook page to research Hernandez’s background, that recollections clashed
at the Special Master hearing about what occurred a decade earlier.
We now turn to the disputed facts.
At the hearing, Cordoba testified that, at first, Hernandez’s Facebook
page was open to the public; Hernandez testified that his Facebook page was
always private. Cordoba stated that she forwarded Hernandez the you-look-
like-my-favorite-hockey-player message, and then Hernandez sent the “friend”
request; Hernandez stated that Cordoba sent him the “friend” request, and then
forwarded the message. Hernandez deleted his Facebook page before the
filing of the grievance, destroying an objective means of determining who had
the better memory.
According to Cordoba, when Hernandez’s Facebook page turned private,
she consulted with Robertelli and told him her only means of access was to
send a “friend” request. But Cordoba conceded that even though she
attempted to give a “simple” explanation of Facebook’s privacy settings, she
did not believe Robertelli understood the significance of a “friend” request.
The Special Master reasoned that Robertelli instructed Cordoba to hold off
29 proceeding further until he checked with the insurance adjuster because Dawn
Mulligan of the Joint Insurance Fund had to authorize payment for
investigatory services. That makes sense. It is unlikely that Robertelli sought
ethical advice from the insurance adjuster.
Robertelli testified that, in explaining to him the change in Hernandez’s
Facebook page, Cordoba told him that Hernandez’s Facebook information was
in a different area of the internet, on the equivalent of a bulletin board but
accessible by the “click of a button.” In Robertelli’s account, Cordoba never
used the term “friend.” He told her to click the button and to continue to
monitor the site.
The Special Master observed the witnesses firsthand. He found that the
passage of time had dulled their memories. The refreshing of Cordoba’s
memory was not done with contemporaneous notes but with memos of
Cordoba’s interviews conducted years after her brief conversations with
Robertelli. We reject the suggestion by the DRB plurality, based on its focus
on an isolated line in the Special Master’s forty-eight-page report, that the
Special Master found Cordoba’s testimony unreliable because she had
laryngitis at the hearing. The Special Master did not find Cordoba
purposefully untruthful but rather found her struggling with an uncertain
memory. The Special Master observed Robertelli on the stand -- an attorney
30 who had a spotless “reputation for integrity and professionalism” -- and
concluded that Robertelli “reasonably . . . believed” that Cordoba was
searching for “publicly available information for material useful to his client.”
We give due regard to the Special Master’s credibility findings based on
his careful observation of the witness testimony unfolding before his eyes. In
the end, based on our independent review of the record, the evidence is not “so
clear, direct and weighty and convincing as to enable [us] to come to a clear
conviction, without hesitancy, of the precise facts in issue,” and therefore the
OAE has not met its burden of producing in our minds “a firm belief or
conviction” that Robertelli violated RPCs 4.2; 5.3; or 8.4(c) or (d). See
Helmer, 237 N.J. at 88-89 (quoting Seaman, 133 N.J. at 74).
We additionally note that the evidence fell far short of establishing that
Robertelli “engage[d] in conduct involving dishonesty, fraud, deceit or
misrepresentation,” RPC 8.4(c), or “engage[d] in conduct that is prejudicial to
the administration of justice,” RPC 8.4(d). When asserted as an independent
basis for discipline, RPC 8.4(d) applies only “to particularly egregious
conduct.” Helmer, 237 N.J. at 83 (quoting In re Hinds, 90 N.J. 604, 632
(1982)). Although the better course might have been for Robertelli to accede
that the information downloaded from Hernandez’s Facebook page was
inadmissible after he learned about the manner in which it was obtained, we
31 cannot fault him for litigating a matter that this Court stated “presents a novel
ethical issue.” See Robertelli, 224 N.J. at 487.
We find that the disciplinary charges against Robertelli have not been
proven by clear and convincing evidence.
We now briefly review those charges and issue a few directives to
remove all doubt, going forward, about a lawyer’s professional obligations in
the use of social media.
RPC 4.2 provides that “[i]n representing a client, a lawyer shall not
communicate about the subject of the representation with a person the lawyer
knows . . . to be represented by another lawyer in the matter . . . unless the
lawyer has the consent of the other lawyer.” The purpose of RPC 4.2 is to
deter lawyer overreaching and unfair gamesmanship -- “protecting a
represented party from being taken advantage of by adverse counsel.”
Michels, N.J. Attorney Ethics 802 (2021) (quoting Curley v. Cumberland
Farms, Inc., 134 F.R.D. 77, 82 (D.N.J. 1991), aff’d, 27 F.3d 556 (3d Cir.
1994)); see also Model Rules of Pro. Conduct r. 4.2 cmt. 1 (Am. Bar Ass’n
1983).
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
32 of clarity today about the professional strictures guiding attorneys in the use of
Facebook and other similar social media platforms.
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. To
be sure, a lawyer litigating a case who -- by whatever means, including
through a surrogate -- sends a “friend” request to a represented client does so
for one purpose only: to secure information about the subject of the
representation, certainly not to strike up a new friendship. Enticing or cajoling
the represented client through a message that is intended to elicit a “friend”
request that opens the door to the represented client’s private Facebook page is
no different. Both are prohibited forms of conduct under RPC 4.2. When the
communication is ethically proscribed, it makes no difference in what medium
the message is communicated. The same rule applies to communications in-
person or by letter, email, or telephone, or through social media, such as
That is the universal view adopted by jurisdictions that have addressed
the issue. See, e.g., N.Y. Bar Ass’n, Com. & Fed. Litig. Section, No. 4.C (“A
lawyer shall not contact a represented party or request access to review the
non-public portion of a represented party’s social media profile unless express
33 consent has been furnished by the represented party’s counsel.”); N.C. Formal
Ethics Op. 2018-5 (“[R]equesting access to the restricted portions of a
represented person’s social network presence is prohibited [by the equivalent
of RPC 4.2] unless the lawyer obtains consent from the person’s lawyer.”);
Me. Ethics Op. 217 (“[A]n attorney may not directly or indirectly access or use
private portions of a represented party’s social media, because the efforts to
access and use the private information . . . are prohibited ‘communications’
with a represented party . . . .”); D.C. Ethics Op. 371 (2016) (“[R]equesting
access to information protected by privacy settings, such as making a ‘friend’
request to a represented person, does constitute a communication that is
covered by the [equivalent of RPC 4.2].”); Or. Formal Ethics Op. 2013-189
(Rev. 2016) (stating that lawyers may not request access to the social media of
a represented party without the consent of the party’s counsel); Colo. Formal
Ethics Op. 127 (2015) (“[A] lawyer may not request permission to view a
restricted portion of a social media profile or website of a person the lawyer
knows to be represented by another lawyer in that matter, without obtaining
consent from that counsel.”); W. Va. Ethics Op. 2015-02, at 10-11 (2015)
(“[A]ttorneys may not contact a represented person through social media . . .
nor may attorneys send a ‘friend request’ to represented persons.”).
34 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. See In re Seelig, 180 N.J. 234, 257
(2004) (“When the totality of circumstances reveals that the attorney acted in
good faith and the issue raised is novel, we should apply our ruling
prospectively in the interests of fairness.”). Although we find that Robertelli
did not violate RPC 4.2 or the other RPCs cited in the complaint, given the
novelty of Facebook in 2008 and for the reasons already stated, lawyers should
now know where the ethical lines are drawn. Lawyers must educate
themselves about commonly used forms of social media to avoid the scenario
that arose in this case. The defense of ignorance will not be a safe haven.
We remind the bar that attorneys are responsible for the conduct of the
non-lawyers in their employ or under their direct supervision. RPC 5.3
requires that every attorney “make reasonable efforts to ensure that the”
conduct of those non-lawyers “is compatible with [the attorney’s own]
professional obligations” under the RPCs. RPC 5.3(a), (b). For example, an
attorney will be held accountable for the conduct of a non-lawyer if the
attorney “orders or ratifies the conduct” that would constitute an ethical
violation if committed by the attorney or “knows of the conduct at a time when
its consequences can be avoided or mitigated but fails to take reasonable
35 remedial action.” RPC 5.3(c)(1), (2). In short, attorneys must make
reasonable efforts to ensure that their surrogates -- including investigators or
paralegals -- do not communicate with a represented client, without the
consent of the client’s attorney, to gain access to a private Facebook page or
private information on a similar social media platform.
V.
In sum, we hold that the disciplinary charges set forth in the complaint
against Robertelli have not been proven by clear and convincing evidence and
must be dismissed. We refer to the Advisory Committee on Professional
Ethics, for further consideration, the issues raised in this opinion. After its
review, the Committee shall advise this Court whether it recommends any
additional social media guidelines or amendments to the RPCs consistent with
this opinion.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON, FERNANDEZ-VINA, SOLOMON, and PIERRE-LOUIS join in JUSTICE ALBIN’s opinion.
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