Ethics Complaint Filed Against New Jersey Attorneys Who “Friended” Plaintiff So They Could Access Private Information On His Facebook Page

Two New Jersey defense attorneys allegedly caused a paralegal to “friend” the plaintiff in a personal injury case so they could access information on his Facebook page that was not available to the public. The Office of Attorney Ethics (OAE) charged that the “friend” request, made “on behalf of and at the direction of” the lawyers, “was a ruse and a subterfuge designed to gain access to non-public portions of [the] Facebook page for improper use” in defending the lawsuit filed by the plaintiff.

No New Jersey ethics opinion specifically addresses “friending” people for litigation purposes. However, the OAE claimed the lawyers’ conduct violated various Rules of Professional Conduct (RPC) governing communications with parties represented by counsel, failure to supervise a non-lawyer assistant, conduct involving dishonesty and violation of ethics rules through someone else’s actions or inducing those violations, and conduct prejudicial to the administration of justice. The supervising attorney was also charged with breaching the RPC which imposes ethical obligations on lawyers for the actions of attorneys they supervise.

The defense lawyers are fighting the charges, claiming that, while they directed the paralegal to conduct general Internet research, they never told her to make the request to be added as a “friend” on plaintiff’s private Facebook page. Defense counsel also claimed that they were unfamiliar with the Facebook privacy settings and the distinction between what was public and what was private on the Facebook site.

The Facebook research came to light at the deposition of plaintiff. At that time, defense attorney began asking the plaintiff “very specific” questions about activities he engaged in that were mentioned in his Facebook posts. Days later, the defense served amended answers to interrogatories with a stack of information from plaintiff’s private Facebook pages, including conversations, photos and a video of plaintiff wrestling with his brother. Ultimately, the trial court barred the use of the Facebook evidence, and the case settled.

After the case settled, plaintiff filed a grievance against defense counsel with the county Ethics Committee, but it was rejected without an investigation. Plaintiff then filed his own grievance with the OAE, which investigated and found a basis for ethics charges. A formal ethics complaint was then filed against defense counsel.

Both of the defense attorneys charged have clean disciplinary records and they “fully cooperated” with the OAE investigation. The first hearing on the alleged ethics violations is expected to take place this fall.

An article in the August 30, 2012 edition of the New Jersey Law Journal on the ethics violations in the case can be found here – Hostile Use Of ‘Friend’ Request Puts Lawyers In Ethics Trouble