The June 4, 2020 Trending Law Blog post discussed the New Jersey Supreme Court’s Disciplinary Review Board (“DRB”) recommendation to the Supreme Court that a New Jersey attorney receive an admonition for instructing a paralegal to “friend” an adverse, represented party on Facebook in order to gather non-public information about the individual, a plaintiff in a personal injury action. On September 21, 2021, the Supreme Court issued a decision which unanimously rejected the recommendation of the DRB.
In the underlying matter, a personal injury plaintiff became aware that the defendants’ attorney’s office had contacted him through Facebook without first contacting his attorney, and, claiming that the contact violated New Jersey Rule of Professional Conduct 4.2 (Communication with Person Represented by Counsel), the plaintiff filed an ethics grievance against the lawyer. The DRB found “clear and convincing evidence that [counsel’s] conduct was unethical.” Following that determination by the DRB, the Supreme Court conducted a de novo review of the record, including a decision by a Special Master (who had presided over a three day hearing on the matter and took testimony from witnesses) that the ethics complaint against the attorney should be dismissed. The Supreme Court agreed with the Special Master and held that “the disciplinary charges set forth in the complaint against [the attorney] have not been proven by clear and convincing evidence and must be dismissed.”
In reaching this decision which rejected the DRB’s finding that the attorney violated the Rules of Professional Conduct, the Supreme Court recognized that in 2008 – when the complained of conduct occurred – the attorney was unfamiliar with the workings of Facebook and did not appreciate what “friending” meant on the social media platform. The Court also took notice of the fact that no jurisdictions in the country had issued any ethics opinions in 2008 regarding whether sending a “friend request” to a represented party constituted a violation of RPC 4.2. Finally, the Court also paid deference to the Special Master’s findings on witness credibility. As a result, the Supreme Court found, based on its independent review of the record, that the disciplinary charges against the attorney had not been proven by clear and convincing evidence.
But the Court did not stop there. It took the opportunity presented in this disciplinary matter to provide guidance to attorneys with regard to their use of social media:
Attorneys should know that they may not communicate with a represented party about the subject of the representation — through social media or in any other manner — either directly or indirectly without the consent of the party’s lawyer. Today, social media is ubiquitous, a common form of communication among members of the public. Attorneys must acquaint themselves with the nature of social media to guide themselves and their non-lawyer staff and agents in the permissible uses of online research. At this point, attorneys cannot take refuge in the defense of ignorance. We refer this issue and any related issues to the Advisory Committee on Professional Ethics for further study and for consideration of amendments to our RPCs.
Opinion at 4. The Court also re-emphasized its conclusions about “the professional strictures guiding attorneys in the use of Facebook and other similar social media platforms” later in its decision (at 32-36).
Thus, the Supreme Court of New Jersey addressed head-on the admonition of comedian and former U.S. Senator Al Franken, who wrote, “Our laws need to reflect the evolution of technology and the changing expectations of American society.”