Facebook. Photo: Diego M. Radzinschi/ALMNew Jersey attorney John Robertelli faces an admonition for instructing his paralegal to become an adverse party’s Facebook “friend” to gain an advantage in litigation.
A four-person majority of the state Supreme Court’s Disciplinary Review Board said 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.”
The DRB’s decision is subject to final approval by the New Jersey Supreme Court.
The DRB was divided 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 board members said accessing and viewing publicly available information on someone’s social media page should be permissible. Any attempt by an attorney, their subordinates or agents, including the client, to gain access to a represented party’s otherwise private social media constitutes improper communication, in violation of RPC 4.2.
Furthermore, any attempt to access an individual’s social media, whether that person is represented or not, without disclosing who is making the request, and the specific purpose of the request, should be deemed conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of RPC 8.4(c).
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.
Although Hernandez claimed he was disabled by the accident, Cordoba reported to Robertelli that Hernandez posted information on Facebook demonstrating his participation in physical activity.
When Cordoba told Robertelli she was planning to send Hernandez a Facebook message, he authorized her to do so. She sent him a message saying he looked like her favorite hockey player, and he responded by saying he “hoped that was a good thing,” and then sent her a friend request, which she accepted. Cordoba later testified that Hernandez’s Facebook page had its privacy level set at “public” when she first viewed it but at some point in April 2008, he changed the setting to “private.” Cordoba said she instructed Robertelli of that change and, after consulting an adjuster, Robertelli told her to proceed with friending Hernandez.
Later, in November 2008, Cordoba discovered a video on Hernandez’s Facebook page showing him wrestling with his brother.
In March 2009, Robertelli provided information gleaned from Hernandez’s Facebook page, including the wrestling video, to Hernandez’s lawyer, Michael Epstein of The Epstein Firm in Rochelle Park. Robertelli also indicated he intended to call Cordoba as a witness in the case. Epstein replied that the video was inadmissible because discovery had closed, and because it was obtained by improper means.
Hernandez filed a grievance against Robertelli with the Office of Attorney Ethics. The case was initially referred to a District Ethics Committee, which declined to docket the grievance. Epstein asked the director of the OAE to examine the case, and after an investigation, the OAE brought a complaint against Robertelli.
In response, Robertelli filed a suit claiming that the OAE director had no statutory authority to pursue a case after the District Ethics Committee declined to pursue it. That case went all the way to the state Supreme Court, which ruled in 2016 that the OAE is empowered to pursue an ethics case after a district ethics committee declined to docket it.
After the Supreme Court issued its ruling, the case was assigned to a special master, Michael Kingman of Diktas Schandler Gillen in Cliffside Park, who conducted a three-day hearing before concluding the case against Robertelli should be dismissed. The DRB, upon a review of the record, disagreed with the special master’s finding, concluding that there was clear and convincing evidence that Robertelli’s conduct was unethical.
Robertelli’s lawyer in the disciplinary case, Michael Stein of Pashman Stein Walder Hayden in Hackensack did not respond to requests for comment.
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