John J. Robertelli v. New Jersey Office of Attorney Ethics (075584)

134 A.3d 963, 224 N.J. 470, 2016 N.J. LEXIS 323
CourtSupreme Court of New Jersey
DecidedApril 19, 2016
DocketA-62-14
StatusPublished
Cited by23 cases

This text of 134 A.3d 963 (John J. Robertelli v. New Jersey Office of Attorney Ethics (075584)) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
John J. Robertelli v. New Jersey Office of Attorney Ethics (075584), 134 A.3d 963, 224 N.J. 470, 2016 N.J. LEXIS 323 (N.J. 2016).

Opinion

*473 Chief Justice RABNER

delivered the opinion of the Court.

New Jersey has a robust disciplinary system designed to address allegations of attorney misconduct and protect the public. The process relies on both a large group of dedicated volunteers, who serve on local District Ethics Committees (DECs), as well as full-time professionals employed by the Office of Attorney Ethics (OAE).

In this appeal, the Court considers whether the OAE may investigate a grievance after a DEC secretary has declined to docket the matter. We find that the relevant court rules permit the OAE to proceed, consistent with the broad authority the rules grant the Director of the OAE and the important aims of the disciplinary process. As a result, the OAE may continue to pursue allegations that plaintiffs, two New Jersey attorneys, violated the Rules of Professional Conduct (RPCs) when they allegedly directed a paralegal to “friend” an adverse, represented party on Facebook and gather non-public information about him.

I.

To recount the facts, we draw on the allegations in the OAE’s pending complaint before the DEC and plaintiffs’ complaint filed with the Superior Court. We make no findings about the accuracy of the factual allegations in either complaint.

On March 10, 2007, a police car driven by a sergeant with the Oakland Police Department allegedly struck a pedestrian, Dennis Hernandez. Hernandez claimed that he suffered permanent injuries and filed a lawsuit against the Borough of Oakland, the police department, and the sergeant.

Plaintiffs John J. Robertelli and Gabriel Adamo, both licensed attorneys in New Jersey, worked at the law firm that represented the defendants in the personal injury lawsuit. To gather information about Hernandez, plaintiffs directed a paralegal to search the Internet. Among other sources, the paralegal accessed Hernandez’s Facebook page multiple times.

*474 At first, the page was open to the public. At a later point, the privacy settings on the account were changed to limit access to Facebook users who were Hernandez’s “friends.” According to the OAE, plaintiffs directed the paralegal to access and continue to monitor the non-public pages, and she submitted a “friend request” to Hernandez. The paralegal did not misrepresent her identity, but she also did not reveal that she worked for plaintiffs’ law firm and was investigating Hernandez.

Hernandez accepted the friend request. He learned about the firm’s actions before trial when plaintiffs sought to add the paralegal as a trial witness and disclosed printouts from Hernandez’s Facebook page and his friends’ pages. Through his attorney, Hernandez objected to the use of the documents at trial. He also filed a grievance with the District II-B Ethics Committee on May 18, 2010, and asserted that it was a violation of the RPCs for plaintiffs to contact him directly through his Facebook page without first contacting his attorney.

Weeks later, on June 22, 2010, the Secretary of the District II Ethics Committee advised Hernandez in writing that she had reviewed the grievance and determined that the allegations, if proven, would not constitute unethical conduct. The Secretary considered only the face of the complaint and did not conduct an investigation. With the agreement of a public member of the Committee, the Secretary declined to docket the grievance.

Hernandez’s attorney next sent a letter to the Director of the OAE on July 30, 2010. The letter recounted plaintiffs’ conduct and offered some additional details not in the original grievance. The core allegations in both documents, though, were essentially the same. According to counsel, “[t]he misuse of the internet and social hosting webpages is nothing short of an end-run on telephone communications and/or written correspondence with clients represented by attorneys.” For that reason, Hernandez’s counsel made a “formal request” that the OAE “review the matter and have it docketed for a full investigation and potential hearing.”

*475 The Director, in turn, investigated the matter and, on November 16, 2011, filed a complaint against plaintiffs with the District XIV Ethics Committee. The complaint alleged that plaintiffs engaged in misconduct in violation of RPC 4.2 (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 inducing another person to violate them or doing so through the acts of another); RPC 8.4(c) (conduct involving dishonesty, fraud, deceit, and misrepresentation); and RPC 8.4(d) (conduct prejudicial to the administration of justice).

Plaintiffs filed an answer to the complaint and stated that they acted in good faith at all times and had not committed any unethical conduct. They explained, in part, that they were unfamiliar "with the different privacy settings on Facebook.

Six months later, plaintiffs asked the Director of the OAE to withdraw the complaint. They argued that Rule 1:20 — 3(e)(6) and case law barred the OAE from proceeding after the Secretary decided not to docket the grievance. 1 The Director declined the request. He relied on the authority contained in Rule l:20-2(b). He added that plaintiffs could file a motion to dismiss the complaint under Rule 1:20 — 5(d) if they believed the Director failed to state a cause of action or that the DEC lacked jurisdiction.

Plaintiffs instead filed the instant complaint in Superior Court on September 13, 2012. They asked the court (1) to declare that the Director lacked authority to “review” the DEC’s decision not to docket the grievance, pursuant to Rule l:20-3(e)(6), and (2) to enjoin the OAE from pursuing the grievance.

*476 The OAE moved to dismiss the complaint. The trial court concluded that because the Supreme Court and the ethics bodies it established have exclusive jurisdiction over attorney disciplinary matters, the Superior Court lacked authority to review or enjoin the acts of the OAE. The trial court therefore dismissed the complaint and added that plaintiffs could move for dismissal of the ethical charges “in the context of the pending disciplinary action.”

The Appellate Division affirmed. It explained that, “[ejxeept for constitutional challenges, which plaintiffs did not raise, the Supreme Court has exclusive jurisdiction and authority over matters of attorney discipline, including the actions of those ethics bodies vested with the authority over attorney disciplinary proceedings.”

We granted plaintiffs’ petition for certification. 222 N.J. 15, 116 A.3d 1070 (2015).

II.

We begin with an overview of the disciplinary system to provide context for this appeal.

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Cite This Page — Counsel Stack

Bluebook (online)
134 A.3d 963, 224 N.J. 470, 2016 N.J. LEXIS 323, Counsel Stack Legal Research, https://law.counselstack.com/opinion/john-j-robertelli-v-new-jersey-office-of-attorney-ethics-075584-nj-2016.