Personal injury lawyers cannot use social media in discovery. The New Jersey Supreme Court has agreed to rule on the jurisdictional battle in the case of two defense lawyers who were hit with ethics charges for allegedly using Facebook as a discovery tool.
An order posted June 22 granted a petition for certification by the two lawyers, John Robertelli and Gabriel Adamo, who allegedly directed their paralegal to “friend” the plaintiff in a personal injury case in order to gather more information about his purported injuries.
The merits of those ethics charges have yet to be considered. After the charges were issued, Robertelli and Adamo filed a declaratory judgment action against the state Office of Attorney Ethics for lack of subject-matter jurisdiction. They challenged the OAE’s authority to overrule the district ethics committee’s decision not to pursue the grievance.
The court’s order upends trial court and appellate rulings tossing out the declaratory judgment action.
In the underlying personal-injury action, Robertelli and Adamo represented the borough of Oakland and its police department in a suit by plaintiff Dennis Hernandez, who claimed he was struck in 2007 by a police car, according to court documents. Hernandez, then 18, claimed he fractured his femur, requiring multiple surgeries.
At the time, both lawyers were practicing at the Hackensack office of Rivkin Radler.
According to the ethics complaint, Rivkin Radler paralegal Valentina Estela Cordoba was instructed to scour the Internet for information about Hernandez. She accessed his Facebook page at the direction of Robertelli and Adamo.
The page was initially public, but when Hernandez tightened his privacy settings, Cordoba maintained her access by submitting a friend request, using her real name but without revealing that she worked for Rivkin Radler, the complaint alleged.
The appeals court’s ruling in the declaratory judgment action mentioned a video recording of Hernandez wrestling, which was later determined to have predated the accident.
Hernandez’s attorney, Michael Epstein of the Epstein Law Firm in Rochelle Park, said in a March 2009 deposition that Adamo began asking Hernandez “very specific” questions—whether he had traveled, gone dancing, wrestled and engaged in other activities that would tend to refute his claims about the seriousness of his injuries.
Robertelli and Adamo sought to enter the video and other materials into evidence, and accused Hernandez of perjury. Bergen County Superior Court Judge Rachelle Harz, at Epstein’s urging, barred the evidence because it was produced after the discovery deadline. The case settled in 2010 for $400,000, according to Epstein.
Epstein helped Hernandez file a grievance with the District II-B Ethics Committee (DEC), which determined there was no unethical conduct and thus brought no formal complaint.
Epstein then went to the OAE, which brought the disciplinary case in November 2011 after an investigation that included obtaining billing records from Rivkin Radler that showed time logged by Cordoba for looking on Facebook and MySpace for information about Hernandez.
The OAE charged Robertelli and Adamo with multiple violations of the Rules of Professional Conduct, including communicating with someone who is represented by counsel; conduct involving dishonesty, fraud, deceit and misrepresentation; and conduct prejudicial to the administration of justice.
In addition, both lawyers are accused of failing to supervise a nonlegal assistant and Robertelli, a partner, is accused of failing to supervise a subordinate lawyer, Adamo, who was an associate at the firm at the time.
The complaint said Robertelli told the OAE that the online postings “presented a completely different view than what was sworn to by Hernandez in the lawsuit.” Robertelli claimed the postings depicted Hernandez traveling around the country, spending time at the Jersey Shore, competing in wrestling tournaments and drinking alcohol while he claimed to be disabled, but the ethics complaint said those activities predated the accident.
Robertelli and Adamo acknowledged asking Cordoba to monitor Hernandez’s Facebook page but denied instructing her to friend him. Their request that she “perform a broad and general Internet search” for information was “not outside the norm,” they said, as Robertelli often asked Cordoba to Google plaintiffs and parties.
They claimed that they were unfamiliar with privacy settings and that they thought a friend request was an automatic process.
Robertelli and Adamo asked the OAE to withdraw the complaint based on court Rule 1:20-3(e)(6)—called the “nonappeal rule.” It provides that a DEC secretary’s decision not to docket a grievance, when made in concurrence with a public member of the committee, is final and not appealable.
The OAE refused to drop the complaint, citing Rule 1:20-2(b)(2), which authorizes it to “investigate any information coming to the director’s attention, whether by grievance or otherwise.”
In September 2012, before any hearings, Robertelli and Adamo filed a complaint against the OAE and its director, Charles Centinaro, in the Bergen County Chancery Division, seeking a declaration that the OAE lacked authority to investigate and prosecute the case.
Judge Harry Carroll dismissed the complaint, holding that the Superior Court did not have jurisdiction. He suggested that the lawyers could move for dismissal in the ethics case and appeal a denial to the Disciplinary Review Board and, if necessary, the Supreme Court.
Robertelli and Adamo asked the Supreme Court to take the case directly, but it refused.
Last February, Carroll’s decision was affirmed by Appellate Division Judges Jack Sabatino, Marie Simonelli and George Leone.
The panel was “cognizant of plaintiffs’ concern that their challenge to the OAE’s legal authority to prosecute them in spite of the DEC’s dismissal should be judicially reviewable in some forum,” but said that opportunity existed only in the Supreme Court.
In March, Michael Stein of Pashman Stein in Hackensack, counsel to Robertelli and Adamo, filed a petition for certification, arguing that Centinaro’s claimed authority to investigate any matter “simply cannot be reconciled with the nonappeal rule’s express prohibition against challenging a dismissal of undocketed grievances.”
The OAE, Stein argued, may appeal only the dismissal of a post-investigation docketed grievance, and only to the Disciplinary Review Board.
“Unless certification is granted, the lower courts’ disposition would force petitioners to litigate the meaning of the nonappeal rule before the lawyers and lay persons that comprise a DEC and the DRB,” Stein wrote. “That issue is far outside the ambit of their authority.”
Stein also pointed out that any ruling by the DRB would not be appealable as of right to the Supreme Court.
Assistant Attorney General Stuart Feinblatt, whose office represents the OAE, responded that the courts below “properly found that the New Jersey Supreme Court, as well as the various bodies this court has established to assist in its disciplinary functions, have exclusive jurisdiction over this matter.”
Feinblatt added the OAE’s “broad authority is in no way affected by the rule precluding appeals from District Ethics Committee decisions not to docket grievances,” and said the OAE “is not an appellate body and was not acting as an appellate body when the OAE director considered new information.”
But Stein, in a reply, said the OAE and DEC considered identical facts, and called the question of OAE authority a “novel and important issue.”
The Supreme Court apparently agreed. In an order dated June 19, the court granted the petition without explanation.
Pashman, in a statement, said the Supreme Court’s ultimate decision in the case “will provide the necessary clarification to the bar with respect to the attorney disciplinary process.”
Attorney General’s Office spokesman Lee Moore declined to comment.
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Read more: http://www.njlawjournal.com/id=1202730283684/High-Court-to-Hear-Attorneys-Facebook-