NJ Supremes OK Attorney Ethics Process

TRENTON, N.J. (CN) — The New Jersey Supreme Court advanced ethics charges against attorneys accused of having a paralegal send a surreptitious Facebook friending request to a defendant.

The court called it a "novel ethical issue."

In the underlying case, attorneys John Robertelli and Gabriel Adamo, with Hackensack-based Rivkin Radler, represented a police sergeant in the Oakland Police Department who allegedly hit pedestrian Dennis Hernandez with his car in 2007.

Hernandez sued Oakland, the police department, and the sergeant, all of whom were represented by Robertelli and Adamo.

Robertelli and Adamo told a paralegal to scour the Internet for information on Hernandez, including his Facebook page, which at the time was public. Hernandez later changed the privacy settings of his page to limit it to those he had friended.

Robertelli and Adamo told the paralegal to get access, and she sent a Facebook friend request without telling Hernandez she was investigating him. "Hernandez accepted the friend request, and the paralegal was able to obtain information from the non-public pages of his Facebook account," Chief Justice Stuart Rabner wrote for the unanimous court.

Hernandez learned in 2010 that the paralegal was monitoring him for Rivkin Radler when a trial witness disclosed printouts from his Facebook page.

Hernandez's attorney objected and filed a grievance with the local ethics committee, calling the Facebook tactics "an end-run on telephone communications" with his client.

The complaint wound its way to the Office of Attorney Ethics, which in 2011 filed a formal complaint against the two attorneys, accusing them of violating rules on client communication and paralegal supervision.

In their response, Robertelli and Adamo claimed ignorance about Facebook's privacy settings and sought withdrawal of the complaint. When the OAE refused, they filed a lawsuit in 2012, claiming the OAE overstepped its authority.

The superior court dismissed the case, however, and the state's Appellate Division affirmed, citing a lack of jurisdiction in matters of attorney discipline.

Such jurisdiction lies exclusively with the New Jersey Supreme Court had such jurisdiction, and this court ruled Tuesday that the attorneys' challenge seeks "to interfere directly with the operation of the disciplinary process."

Rabner said the OAE and local District Ethics Committees both have authority to investigate ethics grievances against attorneys. In the event a District Ethics Committees fails to docket a complaint against an attorney — as was the case with Robertelli and Adamo — the OAE has authority to review the grievance.

"The superior court can consider challenge to the constitutionality of a disciplinary rule," Rabner wrote. "But the superior court lacks jurisdiction over the regulation of the bar and matters that intrude on disciplinary process."

Rabner praised the disciplinary system, especially in tackling groundbreaking ethical issues such as this one, for which there was no current case law.

"The public is best served by a system that permits both volunteers in the DECs and professionals in the OAE to assess challenging ethical matters like the one presented in this case," Rabner wrote.

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