How would New Jersey courts rule on possible overstepping by Supreme Court tribunals that investigate ethics complaints?

The New Jersey Law Journal covered an interesting event on July 2 of this year where two attorneys, John Robertelli (“Robertelli”) and Gabriel Adamo (“Adamo”), sued the Office of Attorney Ethics (“OAE”) for “bringing an ethics case against them after a district panel had declined.” The trial court judge dismissed the case, explaining he had no power to review OAE actions. The OAE, on appeal, claimed the Appellate Division did not have jurisdiction to hear and decide the actions of the OAE, agreeing with the trial court.

The underlying case arose from a March 2007 automobile injury. The plaintiff, Hernandez, was doing push-ups in the driveway of the Borough of Oakland’s fire house. Hernandez claims he was struck by a police vehicle, which caused him to sustain injuries including a fractured femur.

The defense lawyers for the officer driving the vehicle, Robertelli and Adamo, allegedly instructed a paralegal at their firm to Facebook “friend” Hernandez (who was eighteen years old at the time of the incident) for the purpose of accessing information on Hernandez’s Facebook account not ordinarily available to the ordinary public viewer. As many have come to realize, once someone accepts the friend request of another on Facebook, the individual gains access to “private” information on the Facebook account belonging to the friended individual. For the defense lawyers, this would mean they can gain access to information that potentially no one else in the litigation would know.

Hernandez’s attorney revealed the Facebook association came to light following a deposition at which Adamo asked Hernandez questions about travel, dancing, and other activities that would tend to refute his claims regarding the seriousness of his injuries. The defense subsequently supplied amended answers to interrogatories showing conversations, photos, and one video of a wrestling Hernandez with his brother that derived from Hernandez’s private information on his Facebook account according to the New Jersey Law Journal. The Superior Court judge barred the evidence derived from Hernandez’s Facebook account because “it was produced after the discovery deadline.”

The plaintiff walked away with a $400,000 settlement in 2010 and then filed an ethics grievance. District II-B Ethics Committee secretary, Doris Newman, reviewed the complaint and concluded “it did not state facts constituting unethical conduct.” Hernandez’ lawyer requested the OAE director investigate where the OAE found a basis for charges and filed a formal complaint.

The defense attorneys were charged altogether with violating Rule of Professional Conduct (RPC) 4.2 – communication with a represented party; RPC 5.3 for “failure to supervise a nonlawyer; and RPC 8.4(c) for dishonesty and violation of ethics rules through another’s actions as well as rule 8.4(d) for prejudicial conduct to the administration of justice.

In their joint answer, the lawyers admitted they asked their paralegal to monitor Hernandez’s Facebook page, however argued they never instructed her to friend him. The paralegal was asked to do internet searches of a general nature where the information would be available to the public in the past. Both of the defense attorneys claimed that they did not know the difference between the public information and the private information. Significantly, they claimed “they thought a friend request was an automatic process in which anyone who clicked the button could view another person’s information and denied understanding that to friend someone ‘meant reaching out to specifically request someone to accept an invitation.’”

The Superior Court judge dismissed the case, Robertelli v. OAE. In their appeal both the defense lawyers argued “[r]reconciling conflicting rules is the kind of task that courts routinely perform and one ‘not within the ambit of the disciplinary agencies, whose members are lawyers and lay persons that lack the requisite experience to interpret rules of law, [should be bound by court rules]” according to the New Jersey Law Journal. This case, if it shows to involve the courts in ethics decisions, will surely impact how litigation in personal injury suits may be waged as the courts may seek to draw lines between ethical actions and unethical invasions.