Law firm faces ethics probe after a paralegal friended a man on Facebook to gather evidence
TRENTON -- The state's highest court ruled on Tuesday that an ethics investigation against a law firm that used Facebook to dig up dirt on an opponent in an injury lawsuit can move forward.
Calling the case "a novel ethical issue," the New Jersey Supreme Court unanimously ruled that the state's Office of Attorney Ethics had the authority to take up the issue after a county ethics panel declined.
In the decision, Chief Justice Stuart Rabner wrote there was "no reported case law" in New Jersey that addresses whether a representative of a legal firm can access a private social media account to gather evidence in a lawsuit.
The court's decision did not weigh in on the allegations, but provided a history of the case.
In 2007, a sergeant from the Oakland Police Department allegedly hit a pedestrian, Dennis Hernandez, who claimed he suffered permanent injuries from the accident. He later sued the borough, the police department and the officer at the wheel.
Attorneys John J. Robertelli and Gabriel Adamo represented the town in the suit, and in order to collect information in the case told a paralegal at their firm to do an internet search on Hernandez. The paralegal accessed Hernandez's Facebook page, which was initially set to public, on multiple occasions.
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After Hernandez changed his privacy settings on the page, the paralegal could no longer see content from his page, and the two attorneys allegedly directed her to find a way to access it. She allegedly made a friend request, which Hernandez accepted.
Once she had access to the page, the paralegal "silently looked around in his quasi-public private environment" and found videos of Hernandez engaging in physical activities, according to Michael Stein, who argued before the Supreme Court on behalf of Robertelli and Adamo.
The attorneys later tried to use screen captures from Hernandez's page and the pages of his friends as evidence in the suit, prompting the ethics complaint from Hernandez and his attorney.
A local District Ethics Committee -- a volunteer group that reviews ethics complaints at the county level -- declined to hear the case, but the Office of Attorney Ethics picked it up, according to the decision.
Robertelli and Adamo argued the state office could not hear a case that had been passed over by the county committee, but Rabner wrote in the decision that the state body has the authority to "address novel and serious allegations of unethical conduct."
The attorneys denied engaging in unethical behavior and claimed they were "unfamiliar with the different privacy settings on Facebook," according to the decision.
The court referred the case back to the state office to prosecute. Stein said he didn't think his clients violated state ethics rules because they "were not designed to address" issues like social media interactions.
"We're trying to apply analog rules to a digital world, and they don't fit neatly in the environment we're now operating in," he said.
S.P. Sullivan may be reached at ssullivan@njadvancemedia.com. Follow him on Twitter. Find NJ.com on Facebook.