258 A.3d 1059
N.J.2021Background
- In 2007–08 John J. Robertelli represented the Borough of Oakland and a police sergeant in a personal-injury suit brought by Dennis Hernandez.
- Robertelli asked paralegal Valentina Cordoba to perform internet research into Hernandez; Cordoba obtained access to Hernandez’s Facebook after a “friend” connection and downloaded posts including a wrestling video.
- Robertelli forwarded the downloaded Facebook material to plaintiff’s counsel; plaintiff’s counsel (Epstein) alleged an RPC 4.2 violation and filed an ethics grievance.
- The OAE charged Robertelli (and an associate) with violations of RPC 4.2, RPC 5.3 (supervision), and RPC 8.4(c)/(d); a Special Master held a 2018 hearing and dismissed the charges, finding Robertelli lacked knowledge of Facebook’s mechanics and acted in good faith.
- The Disciplinary Review Board split (majority would discipline; minority would dismiss). On de novo review the New Jersey Supreme Court dismissed the charges for failure of the OAE to prove violations by clear and convincing evidence, but clarified the applicable ethics rules for social media going forward.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether sending or inducing a Facebook “friend” request to a represented party constitutes a communication about the subject of representation under RPC 4.2 | OAE: Paralegal’s friend request/message was an indirect communication to gain private, litigation-related information, violating RPC 4.2 | Robertelli: He lacked knowledge of Facebook mechanics, did not authorize contact, and reasonably believed research accessed public information | OAE failed to prove violation by clear and convincing evidence; Court nonetheless held that sending or inducing a friend request to access a represented party’s non-public social media is now prohibited under RPC 4.2 |
| Whether Robertelli failed to supervise the non-lawyer (RPC 5.3) | OAE: Robertelli failed to make reasonable efforts to ensure Cordoba complied with RPCs and ratified the misconduct by using the materials | Robertelli: He did not direct contact; he gave limited internet-research instructions and lacked understanding of social media | OAE did not meet the clear-and-convincing standard here; Court emphasized that lawyers must reasonably supervise staff and ensure compliance with RPCs going forward |
| Whether conduct amounted to dishonesty/misrepresentation or prejudicial conduct (RPC 8.4(c)/(d)) | OAE: Cordoba’s omission/misrepresentation and the use of the material constituted deceit and prejudiced administration of justice | Robertelli: No personal dishonesty; insufficient proof he knew of or authorized improper means | Not proven by clear and convincing evidence; Court noted RPC 8.4(d) requires particularly egregious misconduct |
| Standard of review and credibility: deference to Special Master’s findings | OAE: DRB majority would discipline based on record | Robertelli: Urged deference to Special Master’s credibility findings and the novelty of Facebook in 2008 | Court gave due (but not controlling) deference to Special Master, accepted credibility findings, and concluded OAE failed to satisfy the high burden of proof |
Key Cases Cited
- Robertelli v. Office of Att’y Ethics, 224 N.J. 470 (2016) (OAE authority to investigate/prosecute and recognition of novelty of social media issue)
- In re Pena, 162 N.J. 15 (1999) (de novo review standard in attorney-discipline appeals)
- In re Helmer, 237 N.J. 70 (2019) (discussion of clear-and-convincing proof standard)
- In re Seelig, 180 N.J. 234 (2004) (prospective application where attorney acted in good faith on novel issue)
- In re Seaman, 133 N.J. 67 (1993) (definition of clear conviction/firm belief for the burden of proof)
- In re Hinds, 90 N.J. 604 (1982) (RPC 8.4(d) limited to particularly egregious conduct)