A novel ethics case against two lawyers for using Facebook “friending” to get information in a personal injury case has turned into a judicial shell game — to wit: where’s the jurisdiction?
At issue is the power of New Jersey’s lower courts to review actions by state Supreme Court tribunals that investigate ethics complaints, namely the Office of Attorney Ethics and the district ethics committees.
John Robertelli and Gabriel Adamo sued the OAE for bringing an ethics case against them after a district panel had declined. A Bergen County judge dismissed, saying he had no power to review OAE actions. When the lawyers appealed, the OAE moved to throw it out, claiming the Appellate Division, like the lower court, lacks jurisdiction.
Most recently, on Monday, the lawyers filed opposition papers contending their constitutional right to appeal cannot be denied just because the lower court’s jurisdiction is called into question.
All of this stemmed from a suit over a March 2007 automobile injury. Dennis Hernandez, then 18, was doing push-ups in the driveway of the borough of Oakland firehouse when he was struck by police officer Brian Coughlan’s cruiser. He fractured his femur, requiring multiple surgeries.
Defense lawyers Robertelli, a partner with the Hackensack office of Rivkin Radler, and Adamo, an associate, allegedly caused a paralegal to “friend” Hernandez so they could access information on his Facebook page that was not available to the public.
Hernandez’s attorney, Michael Epstein of Rochelle Park, says the Facebook usage came to light following a deposition at which Adamo asked Hernandez questions about travel, dancing and other activities that would tend to refute his claims regarding the seriousness of his injuries.
The defense later supplied amended answers to interrogatories, accompanied by conversations, photos and a video of Hernandez wrestling with his brother that were taken from the Facebook pages of Hernandez and his friends.
Bergen County Superior Court Judge Rachelle Harz barred use of the Facebook evidence because it was produced after the discovery deadline. The case settled in 2010 for $400,000.
With Epstein’s help, Hernandez filed an ethics grievance. District II-B Ethics Committee secretary Doris Newman reviewed it and concluded it did not state facts constituting unethical conduct.
Epstein then asked OAE director Charles Centinaro to investigate. The OAE found a basis for charges and filed a formal complaint on Nov. 16, 2011.
It alleged that Rivkin Radler paralegal Valentina Cordoba, at the direction of Robertelli and Adamo, visited Facebook and MySpace to download information on Hernandez, including photos, profile views, the wrestling video and screen shots of comments he posted on other people’s pages.
Cordoba was able to freely grab information from Hernandez’s Facebook page until he upgraded his privacy settings so that only friends had access. At that point she sent him a friend request, which he accepted, the complaint says.
Robertelli allegedly told the OAE that the postings — which depicted Hernandez traveling around the country, spending time at the Jersey shore, competing in wrestling tournaments and drinking alcohol — contradicted Hernandez’s sworn testimony that he was disabled, although those activities predated the accident.
Robertelli and Adamo are charged with violating RPC 4.2, for communication with a represented party; 5.3(a), (b) and (c), for failure to supervise a nonlawyer; 8.4(c), for conduct involving dishonesty and violation of ethics rules through someone else’s actions or inducing those violations; and 8.4(d), for conduct prejudicial to the administration of justice.
Robertelli alone is charged with breaching RPC 5.1(b) and (c), which impose ethical obligations on lawyers for the actions of attorneys they supervise.
In their joint answer, the lawyers admitted they asked Cordoba to monitor Hernandez’s Facebook page but said they never instructed her to friend him.
They said their request that she “perform a broad and general internet search” for information was “not outside the norm,” as Robertelli often asked Cordoba to Google plaintiffs and parties.
Adamo had a Facebook account and Robertelli didn’t, but both claimed to be unfamiliar with the privacy settings and with the distinction between what was public and what was private.
They claimed they thought a friend request was an automatic process in which anyone who clicked the button could view another person’s information and denied understanding that to friend someone “meant reaching out to specifically request someone to accept an invitation.”
Last September, before ethics hearings began, the lawyers sued in Bergen County Chancery Division, seeking declaratory and injunctive relief.
Superior Court Judge Harry Carroll dismissed the case, Robertelli v. OAE, on Jan. 22, based in part on the Aug. 12, 2011, precedential ruling in O’Boyle v. District I Ethics Committee. There, plaintiff Martin O’Boyle argued unsuccessfully to the Appellate Division that R. 1:20-3(e)(6), which prohibits appeal of a district committee’s decision not to docket a grievance, violated his rights to due process and equal protection. The Supreme Court denied certification.
In their case, Robertelli and Adamo argue on appeal that the Supreme Court’s exclusive jurisdiction over attorney discipline “does not rob lower courts of their general jurisdiction to interpret Court Rules, even when the subject matter of those rules touch on the disciplinary process.”
They say the case calls for construing R. 1:20-3(e)(6) together with R. 1:20-2(b)(2), which broadly authorizes the OAE to “investigate any information coming to the Director’s attention, whether by grievance or otherwise, which, in the Director’s judgment, may be grounds for discipline.”
Reconciling conflicting rules is the kind of task that courts routinely perform and one “not within the ambit of the disciplinary agencies, whose members are lawyers and lay persons that lack the requisite expertise to interpret rules of law,” they state in their brief.
Epstein says he and Hernandez are eager to have an ethics panel decide the case on the merits and he hopes it will not be dismissed on a technicality.
Michael Stein, of Pashman Stein in Hackensack, who represents Robertelli and Adamo, declines comment.
Adamo is now with Milber Makris Plousadis & Seiden in Rochelle Park.
In August 2011, the Supreme Court released for comment an American Bar Association report recommending that investigation and prosecution of ethics cases against New Jersey lawyers be centralized in the OAE. That November, the court announced it was requesting follow-up information from the OAE, the Disciplinary Oversight Committee and the Disciplinary Review Board regarding some of the recommendations in the report. Judiciary spokeswoman Winnie Comfort said Tuesday that the issues “remain under consideration.”