Two New Jersey defense lawyers have been hit with ethics charges for having used Facebook in an unfriendly fashion.
John Robertelli and Gabriel Adamo 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 “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 case, the Office of Attorney Ethics charges.
The OAE says the conduct violated Rules of Professional Conduct governing communications with represented parties, along with other strictures.
The 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,” which allows access to a Facebook page that is otherwise private.
At the time of the incident, Robertelli, a partner with the Hackensack office of Rivkin Radler, and Adamo, an associate at the firm, represented the borough of Oakland and police officer Brian Coughlan in the suit.
In March 2007, plaintiff Dennis Hernandez, then 18, was struck by Coughlan’s police cruiser while doing push-ups in the driveway of the Oakland fire house. He fractured his femur, requiring multiple surgeries, says his lawyer, Michael Epstein of the Epstein Law Firm in Rochelle Park.
The Facebook research came to light following a deposition of Hernandez on March 19, 2009, in the aftermath of surgery to remove a metal rod. It was meant to be an inquiry into his condition at that point, but instead, Adamo began asking Hernandez “very specific” questions that “perked our ears up,” says Epstein — questions like whether he had traveled, gone dancing and other activities that would tend to refute his claims about the seriousness of his injuries.
Days later, Epstein says, the defense sent over amended answers to interrogatories with a stack of information from the Facebook pages of Hernandez and his friends. It included conversations, photos and a video of Hernandez wrestl ing with his brother.
Epstein objected that it was too late to amend and asked who had accessed the Facebook page, but got no answer.
He claims Adamo asked questions at the deposition based on information he possessed but had not produced. In particular, he asked Hernandez if he had wrestled with his brother in the preceding year without mentioning he had a video of them.
Epstein’s motion to bar use of the Facebook matter was met with a cross-motion accusing his client of perjury for answering “no” about the wrestling. Epstein countered with a certification that the video predated the injury.
Bergen County Superior Court Judge Rachelle Harz barred the Facebook evidence because it was produced after the discovery deadline. The case settled in 2010 for $400,000, Epstein says.
With Epstein’s help, Hernandez filed a grievance with the District II-B Ethics Committee, but it was rejected without an investigation.
Epstein then filed his own grievance with the OAE, which investigated and found a basis for charges. A formal complaint dated Nov. 16, 2011, alleges that Rivkin Radler paralegal Valentina Estela Cordoba accessed Hernandez’s Facebook page at the direction of Robertelli and Adamo.
The complaint shows billing entries logged by Cordoba between February 2008 and February 2009, which said she looked on Facebook and MySpace for information on Hernandez, retrieving photos, profile views and comments and “voluminous screen shots of comments left by plaintiff on friends’ pages.”
She also recounted gathering photographs and information from Facebook concerning Hernandez’s brother and sister, two of his friends and two people who witnessed the accident, adding that the materials would be sent to a surveillance company.
Two entries dated Nov. 4, 2008, mention downloading a copy of the wrestling video.
Robertelli allegedly told the OAE that Hernandez’s postings “presented a completely different view than what was sworn to by Hernandez in the lawsuit.” They depicted him traveling around the country, spending time at the Jersey shore, competing in wrestling tournaments and drinking alcohol when he claimed to be disabled.
Those activities predated the accident, the ethics complaint points out.
At first, Cordoba was able to freely grab information from Hernandez’s Facebook page, but after he upgraded his privacy settings so that only friends had access, she sent him the friend request, which he accepted, the complaint says.
Robertelli and Adamo are charged with violating RPC 4.2, concerning communications with represented parties; 5.3(a), (b) and (c), failure to supervise a nonlawyer assistant; 8.4(c), conduct involving dishonesty and violation of ethics rules through someone else’s actions or inducing those violations; and 8.4(d), conduct prejudicial to the administration of justice. Robertelli is also charged with breaching RPC 5.1(b) and (c), which impose ethical obligations on lawyers for the actions of attorneys they supervise.
Robertelli and Adamo filed a joint answer in January, admitting that Cordoba accessed the Facebook page “through discussion” with them but “not necessarily” at their direction.
They say they asked her to “perform a broad and general internet search” for information on Hernandez after hearing that he was indicted for breaking into cars, a request that was “not outside the norm,” as Robertelli often asked Cordoba to Google plaintiffs and parties.
They assert they had Cordoba monitor Hernandez’s Facebook page but never instructed her to friend him.
Robertelli says he was not on Facebook, and Adamo, who had an account he says he “rarely used,” both claim they were unfamiliar with the privacy settings and the distinction between what was public and what was private on the site.
They say they thought a friend request was an automatic process in which anyone who clicked the button could view another person’s information and did not understand that friending someone “meant reaching out to specifically request someone to accept an invitation.”
They also dispute that the friending was “a ruse and a subterfuge,” since Cordoba used her own name.
Among the affirmative defenses they raise are their good faith, the lack of harm to any client, their remorse and their “substantial” community service.
Both also have clean disciplinary records — Robertelli admitted in 1990 and Adamo in 2000 — and they “fully cooperated” with the investigation. Adamo is now with Milber Makris Plousadis & Seiden in Rochelle Park.
The first hearing is expected to take place this fall before a panel chaired by N. Ari Weisbrot of PhillipsNizer in Hackensack.
Robertelli and Michael Stein of Pashman Stein in Hackensack, who represents both lawyers, were on vacation and could not be reached, while Adamo did not return a call.
Rivkin Radler general counsel Peter Contino says “we are confident that there will be a just outcome in the end.”
Epstein says he brought the grievance because “I thought what was done here was wrong and a violation of the rules” and he thought it “important to address it not only in this particular case” but to keep it from happening in other cases.
Social Media Is New Ethics Territory
No New Jersey ethics opinion specifically addresses friending people for litigation purposes, but three bar groups around the country have deemed it unethical.
In March 2009, the Philadelphia Bar Association’s Professional Guidance Committee found in Opinion 2009-02, that it would violate the equivalents to RPC 8.4(c) and 4.1 for a lawyer to have a third party seek to friend a witness whose testimony was helpful to an adverse party.
The New York City Bar Association’s Opinion 2010-02 said contacting an unrepresented person through a social networking website and asking for permission to access her web page to obtain information to use in litigation would violate the counterparts to RPCs 4.1, 5.3(b)(1) and 8.4(a) and (c).
Opinion 2011-2, from the San Diego County Bar Legal Ethics Committee on May 24, 2011, involved a lawyer representing a plaintiff in a wrongful discharge matter who wanted to friend two high-ranking employees of the company who his client had said were unhappy with the company and had disparaged it. The committee said the attorney was barred from ex parte contact with a represented party to elicit information pertaining to the case by any means and that the duty not to deceive prohibited making a friend request of even an unrepresented witness without disclosing the purpose of the request.
“Represented parties shouldn’t have ‘friends’ like that and no one — represented or not, party or non-party — should be misled into accepting such a friendship,” wrote the committee.