Social Media Collides with New Jersey’s RPCs

Facebook launched in February 2004.  Twitter launched in July 2006. Instagram launched in October 2010. But New Jersey Rule of Professional Conduct 4.2 (Communication with Persons Represented by Counsel) predates all of the above social media platforms. Adopted originally in 1984 and amended in June 1996 and again in November 2003, RPC 4.2 currently provides in relevant part as follows:

In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows, or by the exercise of reasonable diligence should know, to be represented by another lawyer in the matter.

On April 30, 2020, a four-person majority of the New Jersey Supreme Court’s Disciplinary Review Board (“DRB”) recommended to the Supreme Court that a New Jersey attorney receive an admonition for instructing a paralegal to “friend” an adverse, represented party on Facebook in order to gather non-public information about the individual, a plaintiff in a personal injury action. That plaintiff ultimately became aware that the attorney’s office had contacted him through Facebook without first contacting his attorney, and, claiming that the contact violated the RPCs, filed an ethics grievance against the lawyer.

A special master eventually conducted a three day hearing on the matter, which included taking testimony from a number of witnesses. At the conclusion of the hearing, the special master determined that the ethics complaint against the attorney should be dismissed in its entirety. The DRB though conducted a de novo review of the record, disagreed with the special master’s conclusion, and found “clear and convincing evidence that [counsel’s] conduct was unethical.”

In reaching its decision, the DRB noted that the “matter confronts the application of Rules developed in an ‘analog’ world to conduct committed in what is now a ‘digital’ world.” The DRB further found that “the non-existence of technology at the time the Rules were drafted does not transform the conduct under scrutiny to novel behavior.” Following its review of the record, the DRB found the attorney violated RPC 4.2 by directing a paralegal to communicate surreptitiously with a represented party. A majority of the DRB then recommended an admonition as a sanction for the RPC violation. (Two other members of the DRB recommended a censure and three members recommended a dismissal of the complaint.) Whether the Supreme Court ultimately accepts the DRB’s recommendation remains to be seen.

In addition to the DRB’s determination on the ethics complaint, the DRB’s decision also included a “Policy Recommendation” for the Supreme Court to consider. Specifically, the DRB recommended that New Jersey adopt standards regarding the use of social media to communicate with represented and unrepresented parties to litigation, particularly with regard to an individual’s non-public social media information.

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            In March 2012, comedian and former U.S. Senator Al Franken wrote, “Our laws need to reflect the evolution of technology and the changing expectations of American society.”  The DRB’s Policy Recommendation to the New Jersey Supreme Court seems to echo the call of Senator Franken.

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            For any question relating to this article, please contact Robert B. Nussbaum, Esq. at Saiber LLC.