N.J. Supreme Court Dismisses Disciplinary Charges Against Attorney for Alleged Ethics Violation Involving the Use of Social Media

            The June 4, 2020 Trending Law Blog post discussed the New Jersey Supreme Court’s Disciplinary Review Board (“DRB”) recommendation 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. On September 21, 2021, the Supreme Court issued a decision which unanimously rejected the recommendation of the DRB.

            In the underlying matter, a personal injury plaintiff became aware that the defendants’ attorney’s office had contacted him through Facebook without first contacting his attorney, and, claiming that the contact violated New Jersey Rule of Professional Conduct 4.2 (Communication with Person Represented by Counsel), the plaintiff filed an ethics grievance against the lawyer. The DRB found “clear and convincing evidence that [counsel’s] conduct was unethical.”  Following that determination by the DRB, the Supreme Court conducted a de novo review of the record, including a decision by a Special Master (who had presided over a three day hearing on the matter and took testimony from witnesses) that the ethics complaint against the attorney should be dismissed. The Supreme Court agreed with the Special Master and held that “the disciplinary charges set forth in the complaint against [the attorney] have not been proven by clear and convincing evidence and must be dismissed.”

            In reaching this decision which rejected the DRB’s finding that the attorney violated the Rules of Professional Conduct, the Supreme Court recognized that in 2008 – when the complained of conduct occurred – the attorney was unfamiliar with the workings of Facebook and did not appreciate what “friending” meant on the social media platform. The Court also took notice of the fact that no jurisdictions in the country had issued any ethics opinions in 2008 regarding whether sending a “friend request” to a represented party constituted a violation of RPC 4.2. Finally, the Court also paid deference to the Special Master’s findings on witness credibility. As a result, the Supreme Court found, based on its independent review of the record, that the disciplinary charges against the attorney had not been proven by clear and convincing evidence.

            But the Court did not stop there. It took the opportunity presented in this disciplinary matter to provide guidance to attorneys with regard to their use of social media:

Attorneys should know that they may not communicate with a represented party about the subject of the representation — through social media or in any other manner — either directly or indirectly without the consent of the party’s lawyer. Today, social media is ubiquitous, a common form of communication among members of the public. Attorneys must acquaint themselves with the nature of social media to guide themselves and their non-lawyer staff and agents in the permissible uses of online research. At this point, attorneys cannot take refuge in the defense of ignorance. We refer this issue and any related issues to the Advisory Committee on Professional Ethics for further study and for consideration of amendments to our RPCs.

Opinion at 4. The Court also re-emphasized its conclusions about “the professional strictures guiding attorneys in the use of Facebook and other similar social media platforms” later in its decision (at 32-36).

            Thus, the Supreme Court of New Jersey addressed head-on the admonition of comedian and former U.S. Senator Al Franken, who wrote, “Our laws need to reflect the evolution of technology and the changing expectations of American society.” 

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

An Attorney’s Consequences for Making Injudicious Comments on Social Media

In a 28 page decision issued earlier this year, which the Supreme Court of Tennessee described as “a cautionary tale on the ethical problems that can befall lawyers on social media,” the court increased a lawyer’s 60 day suspension from practicing law to a four year suspension because of comments the lawyer made on Facebook.  The comments instructed one of the attorney’s Facebook friends on how to shoot a person she had broken up with and to make the shooting appear to be one done in self-defense.

Although the Facebook posts were ultimately removed at the lawyer’s urging (in another Facebook post he made), screenshots captured by the potential shooting victim were brought to the attention of the county district attorney general, who, in turn passed them along to the Tennessee Board of Professional Responsibility (“Board”).  The Board investigated and found that the attorney’s advice about how to engage in criminal conduct and avoid arrest or conviction violated RPC 8.4 (a) and 8.4(d) of Tennessee’s Rules of Professional Conduct and, following a hearing, the Board’s hearing imposed a 60 day suspension of the lawyer’s license to practice law.

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Social Media and the Code of Judicial Conduct

On June 16, 2020, a 4-3 majority of the Supreme Court of Wisconsin ruled that a judge’s decision to become friends on Facebook with a woman whose child custody case the judge was hearing created the appearance of bias. The Wisconsin court found the judge’s conduct violated the other litigant’s right to due process because “the extreme facts of this case rebut the presumption of judicial impartiality.” The court also strongly urged Wisconsin judges to “weigh the advantages and disadvantages of using electronic social media like Facebook.” In contrast, the Supreme Court of Florida (also in a 4-3 decision) held in a 2018 decision that it was all right for judges to be Facebook friends with attorneys who have cases before them. In reaching that decision, the court noted that a Facebook friendship “does not objectively signal the existence of the affection and esteem involved in a traditional ‘friendship’” and that “not every relationship characterized as a friendship provides a basis for disqualification.”

To date, there have been no New Jersey court decisions or ethics opinions written about how judges in New Jersey should use social media. However, two of the seven Canons of the New Jersey Code of Judicial Conduct, which can be found in the Appendix to Part I of the New Jersey Court Rules, seem to suggest that if judges do make use of social media, they should do so very carefully.

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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.

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Counsel’s Social Media Posts Lead to Monetary Sanctions

28 U.S.C. § 1927 provides that “An attorney or other person admitted to conduct cases in any court of the United States or any territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, and attorneys’ fees reasonably incurred by such conduct.

Image of Polaroid CameraVery recently, in Ha v. Baumgart Café of Livingston, No. 15-5530, 2018 U.S. Dist. LEXIS 70781 (D.N.J. Apr. 28, 2018), a district court in New Jersey relied on Section 1927 to impose a $10,000 sanction against the plaintiffs’ attorney because of her social media posts. The attorney filed a motion beyond the time when she had been ordered by the court to file it and, to explain its untimeliness, she wrote a letter stating that she missed the deadline because of a family emergency that required her to leave the country. Her social media posts, however, proved that her excuse for missing the deadline was not true. After receiving a copy of the explanatory letter, opposing counsel objected to the untimely filed motion because, among other things, the attorney’s public Instagram page contained photographs of her in Miami and New York City during the time she claimed to have been out of the country. Screenshots of the Instagram pages were included with defense counsel’s objection.

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