In 2008, when Facebook was still in its infancy, Mr. Robertelli represented a public entity 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. The Office of Attorney Ethics brought charges against Mr. Robertelli, but the New Jersey Supreme Court ultimately declined to sanction him.
Rule 4.2 generally prohibits a lawyer from communicating with another lawyer’s client about the subject of the representation without the other lawyer’s permission. “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. 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.”
However, in this particular case, the Court found that Mr. Robertelli did not know back in 2008 how Facebook functioned, was not familiar with its privacy settings, and did not understand the language of Facebook, such as “friending”. In the end, the Court found that the evidence was 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 Office of Attorney Ethics had not met its burden of producing in the Court’s mind “a firm belief or conviction” that Robertelli violated the Rules.
“We additionally note” the Court said, “that the evidence fell far short of establishing that Robertelli engaged in conduct involving dishonesty, fraud, deceit or misrepresentation, or conduct prejudicial to the administration of justice. When asserted as an independent basis for discipline, Rule 8.4(d) applies only to particularly egregious conduct. 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 cannot fault him for litigating a matter that this Court stated presents a novel ethical issue.”
Matter of Robertelli, 248 N.J. 293, 258 A.3d 1059 (2021).