This ethics case stems from a 2007 car accident in which Dennis Hernandez was allegedly struck by a police car from the borough of Oakland, NJ while performing sit-ups in a parking lot. Hernandez sued Oakland, the police department and the officer who drove the police car, claiming he suffered a broken pelvis and broken leg. New Jersey attorney John J. Robertelli, representing the Oakland defendants, believed Hernandez’s tort claims notice contained discrepancies, so he instructed his paralegal, Valentina Cordoba, to conduct a general internet search of Hernandez.
Although Hernandez claimed he was disabled by the accident, Cordoba found that Hernandez posted information on Facebook demonstrating that he could participate in physical activity. She reported the postings she found on Facebook to Robertelli.
Robertelli authorized Cordoba to send Hernandez a Facebook message. 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 Robertelli told her to proceed with “friending” Hernandez.
Later in 2008, Cordoba discovered a video on Hernandez’s Facebook page showing him wrestling with his brother.
In 2009, Robertelli provided the information found on Hernandez’s Facebook page, including the wrestling video, to Hernandez’s lawyer, Michael Epstein. Robertelli also indicated he intended to call Cordoba as a witness in the case to testify about what she’d found on Facebook. Epstein replied that the video was inadmissible because because it was obtained by improper means.
Hernandez filed a grievance against Robertelli with the Office of Attorney Ethics (OAE). The case was initially referred to a District Ethics Committee, which declined to pursue it. 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 lawsuit, 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 consider an ethics case even after a district ethics committee declined to pursue it.
After the Supreme Court issued its ruling, the case was assigned to a Special Master. The Special Master conducted a three-day hearing. Thereafter, the Special Master concluded that the case against Robertelli should be dismissed. The state Supreme Court’s Disciplinary Review Board (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.
However, the DRB was divided over the severity of the Facebook incident. A four-person majority of the state Supreme Court’s DRB said Robertelli should receive an admonition because he violated the Rules of Professional Conduct (RPC) by engaging in secret communication with a person he knew was represented by counsel, failing to supervise a non-lawyer assistant, and engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.
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 the RPC.
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 the RPC.
Two other DRB members 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’s decision is subject to final approval by the New Jersey Supreme Court.
(This blog post was adapted from an article on the Law.com website)
The four-person majority opinion of the state Supreme Court’s Disciplinary Review Board, recommending an admonition, is attached here –
The two person dissent recommending censure, a more severe form of punishment, is annexed here –
The opinion of three members of the Review Board, who said Robertelli’s actions warranted no discipline at all, resulted in two separate opinions, which are annexed here –
Dissent Opinion 1 –
Dissent Opinion 2 –
For additional information concerning NJ elder law and special needs planning visit:
Vanarelli & Li, LLC on Social Media