Lawyer Faces Admonition Over Facebook “Friending” to Gather Info From Adverse Party: eDiscovery Trends

There was a TV show in the 80s and early 90s for which the theme song was Thank You for Being a Friend.  Remember which show it was?  Answer below.  Regardless, a New Jersey attorney faces an admonition for instructing his paralegal to become an adverse party’s Facebook “friend” to gain an advantage in litigation.  Don’t think that’s what the song had in mind.

As reported in the New Jersey Law Journal (Not a ‘Friend’: Lawyer Faces Admonition Over Facebook ‘Friending’ to Gather Info, written by Charles Toutant), a four-person majority of the state Supreme Court’s Disciplinary Review Board (DRB) said in a 40 page decision that John Robertelli, of Rivkin Radler in Hackensack, should receive an admonition for using the social networking site to obtain information about Dennis Hernandez. The DRB decision said an admonition is warranted because Robertelli violated the Rules of Professional Conduct by engaging in surreptitious communication with a person he knew was represented by counsel, failing to supervise a nonlawyer assistant, and engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.

“Although this matter confronts the application of rules developed in an ‘analog’ world to conduct committed in what is now a ‘digital’ world, the non-existence of technology at the time the rules were drafted does not transform the conduct under scrutiny into novel behavior,” said the DRB’s four-member majority. “Rather, respondent’s misconduct, neither unique nor new, simply took place in a more modern forum. The forum does not change the nature of the misconduct or the necessity for respondent to be aware of his professional obligations.”

eDiscovery Assistant

The DRB’s decision is subject to final approval by the New Jersey Supreme Court.

The DRB was about as divided as you can be over the severity of the Facebook incident. Besides the four members who called for admonition, two others recommended censure, a more severe form of punishment; and three members, in two different opinions, said Robertelli’s actions warranted no discipline at all.

The DRB majority also recommended that the Supreme Court adopt a policy on using social media for discovery purposes.

The ethics case stems from a 2007 accident in which Hernandez was allegedly struck by a police car from the borough of Oakland while performing sit-ups in a parking lot. Hernandez sued Oakland, the police department and the officer, claiming he suffered a broken pelvis and broken leg. Robertelli, representing the Oakland defendants, believed Hernandez’s tort claims notice contained discrepancies, so he instructed paralegal Valentina Cordoba to conduct a general internet search of Hernandez.  That eventually led to Robertelli authorizing Cordoba to send Hernandez a Facebook message and then friending Hernandez after he changed his Facebook page privacy level to “private”.

You can read more about the story via the story link above.  And, as for which TV show used that theme song?  That would be The Golden Girls.  🙂

So, what do you think?  Should Facebook friending of adversaries be considered an ethics violation?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

3 comments

    • Also, I believe the case was very appropriately handled, and hope the Supreme Court of New Jersey accepts the recommendation. It would be one thing if the Facebook profile were public. They applied the one rule (among the others) I thought of immediately, contacting someone represented by Counsel. If I had been the attorney on the other side, I would not have been pleased.

Leave a Reply