NJ Supreme Court Dismisses Disciplinary Charges Against Lawyer for Alleged Ethics Breach Involving Use of Social Media | Saiber SARL
The Legal trends blog post from June 4, 2020 discussed the recommendation of the New Jersey Supreme Court Disciplinary Review Board (“DRB”) to the Supreme Court that a New Jersey lawyer be cautioned for asking a paralegal to “befriend” a opposing party represented on Facebook in order to gather non-public information about the individual, a plaintiff in a personal injury action. On September 21, 2021, the Supreme Court issued a decision decision which unanimously rejected the DRB recommendation.
In the underlying case, a personal injury plaintiff learned that the defendants’ attorney’s office contacted him via Facebook without first contacting his attorney and, claiming the contact violated New Jersey Code of Business Conduct 4.2 (Communication with the person represented by a lawyer), the plaintiff filed an ethics grievance against the lawyer. The DRB found “clear and convincing evidence that [counsel’s] the conduct was unethical. Following this DRB decision, the Supreme Court proceeded to a de novo review of the case, including a decision by a Special Master (who had presided over a three-day hearing on the matter and taken witness statements) that the ethics complaint against the lawyer should be dismissed. The Supreme Court ruled in favor of the Special Master and ruled that “the disciplinary charges set out in the complaint against [the attorney] have not been proven by clear and convincing evidence and must be rejected.
In making this decision which rejected the DRB’s finding that the lawyer had violated the rules of professional conduct, the Supreme Court acknowledged that in 2008 – when the alleged conduct occurred – the lawyer was unfamiliar with with the operation of Facebook and did not appreciate this “meant on the social media platform. The Court also took note of the fact that no jurisdiction in the country had issued an ethical opinion in 2008 as to whether sending a “friend request” to a represented party constituted a violation of the PRC. 4.2. Finally, the Court also took into account the conclusions of the Special Master on the credibility of witnesses. As a result, the Supreme Court concluded, based on its independent review of the case, that the disciplinary charges against the lawyer had not been proven by clear and convincing evidence.
But the Court did not stop there. He took the opportunity presented in this disciplinary case to advise lawyers on their use of social media:
Lawyers should be aware that they cannot communicate with a represented party about the subject matter of the representation – through social media or in any other way – either directly or indirectly without the consent of the legal counsel. part. Today, social media is ubiquitous, a common form of communication among members of the public. Lawyers should familiarize themselves with the nature of social media to guide themselves, their staff and lay agents in the permitted uses of online research. At this point, lawyers cannot take refuge in the defense of ignorance. We refer this and any related matters to the Professional Ethics Advisory Committee for further study and for consideration of changes to our RPCs.
Notice to 4. The Court also reaffirmed its findings on “professional restrictions guiding lawyers in the use of Facebook and other similar social media platforms” later in its decision (at paragraphs 32-36).
Thus, the New Jersey Supreme Court addressed head-on the warning from comedian and former US Senator Al Franken, who wrote: “Our laws must reflect the evolution of technology and the changing expectations of American society.