Plaintiffs John J. Robertelli and Gabriel Adamo, two New Jersey defense counsel charged with ethics violations involving the use of Facebook in a litigation, lost their bid to dismiss the ethics charges.

Plaintiffs’ law firm represented defendants Borough of Oakland, the Borough of Oakland Police Department, and a police sergeant in a lawsuit filed by Dennis Hernandez, who claimed that he sustained permanent injuries when struck by a police car driven by the police sergeant. During the lawsuit, Robertelli directed his paralegal to search the Internet to obtain information about Hernandez. On multiple occasions, the paralegal accessed Hernandez’s Facebook page. Then, using her true identity but not disclosing her employment with Robertelli’s law firm, the paralegal requested to “friend” Hernandez, and he agreed. The paralegal obtained information from Hernandez’s private Facebook page that could be used against him, including a video recording of him wrestling.

Hernandez filed an ethics grievance, alleging that plaintiffs’ conduct violated several Rules of Professional Conduct (R.P.C.s). The local ethics committee concluded that plaintiffs did not engage in any unethical conduct. Hernandez’s attorney then wrote to the Director of the Office of Attorney Ethics (OAE), provided additional information, and requested that the OAE conduct a full investigation. The OAE agreed and, following the investigation, issued a complaint, alleging plaintiffs violated several R.P.C.s, including prohibitions on communicating with someone represented by counsel, conduct involving dishonesty, fraud, deceit and misrepresentation, and conduct prejudicial to the administration of justice. In addition, both lawyers were accused of failing to supervise a non-legal assistant, and Robertelli was accused of failing to supervise a subordinate lawyer, Adamo, who was an associate at his firm.

Plaintiffs filed a complaint in the Chancery Division of the Superior Court against the OAE and its Director seeking a declaratory judgment that defendants lacked authority to investigate and prosecute a grievance against them and an injunction prohibiting prosecution of the grievance. The trial judge dismissed the complaint for lack of subject matter jurisdiction in the Superior Court, concluding the Supreme Court and local ethics committees established by that Court have exclusive jurisdiction over attorney disciplinary matters. The appellate division affirmed.

The case is attached here – Robertelli v. NJ Office of Attorney Ethics

UPDATED ON JUNE 24, 2015: On June 19, 2015, the New Jersey Supreme Court entered an order granting a petition for certification filed by plaintiffs Robertelli and Adamo, agreeing to rule on the following issue: Does the Director of the Office of Attorney Ethics have the authority to proceed with a grievance after a District Ethics Committee Secretary (with concurrence by a designated public member) has declined a grievance?

UPDATED ON APRIL 22, 2016: On April 19, 2016,the New Jersey Supreme Court unanimously rejected plaintiffs’ contention that New Jersey’s ethics rules bar the Director of the Office of Attorney Ethics, the state’s attorney disciplinary body, from taking further action to review allegations of unethical conduct and file a disciplinary complaint after a district ethics committee declined to file a similar claim, holding that the misconduct case against two lawyers for alleged Facebook spying could go forward. At this time, the New Jersey Supreme Court wasn’t deciding if the lawyer-plaintiffs violated ethics rules or should face sanctions. The Court’s opinion is annexed here – Robertelli v. New Jersey Office of Attorney Ethics

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