On February 3, 2015, the Appellate Division of the New Jersey Superior Court affirmed the dismissal of a complaint two attorneys filed against the Office of Attorney Ethics and its Director (collectively “OAE”) claiming OAE lacked authority to investigate and prosecute ethics grievances against them for “friending” a party to a litigation on Facebook. The Appellate Division’s decision is significant – it affirms OAE’s power to investigate and prosecute alleged ethical violations and demonstrates the potential consequences for attorneys’ improper use of social media in litigation.
The subject attorneys were retained to defend a town and its police sergeant in a personal injury action. One attorney directed his paralegal to conduct Internet research about the plaintiff. The paralegal accessed the public portions of the plaintiff’s Facebook page, and sent the plaintiff a “friend” request without disclosing her association with the attorneys. The plaintiff accepted the friend request, and the paralegal obtained information the attorneys could use to impeach the plaintiff’s personal injury claims.
The plaintiff filed a grievance with the District Ethics Committee (“DEC”) claiming violation of various Rules of Professional Conduct (“RPC”), who declined to hear it. At the plaintiff’s attorney’s request, OAE reviewed and further investigated the matter and ultimately issued a complaint alleging the attorneys violated various RPC’s, including improper communication with a represented party, failure to supervise a non-lawyer assistant, and conduct that involved dishonesty, fraud, deceit, and misrepresentation.
The attorneys argued the OAE review constituted an improper “appeal” of the ethics committee’s decision and that the OAE lacked authority to investigate and prosecute the rejected grievance. OAE disagreed, citing R. 1:20-2(b)as authority to proceed. The attorneys filed a verified complaint in the Chancery Division seeking a declaration that OAE lacked authority to investigate and prosecute the grievance because the ethics committee’s decision was final. OAE moved to dismiss, arguing the court lacked subject matter jurisdiction because the Supreme Court has exclusive jurisdiction over attorney disciplinary matters. OAE also sought dismissal for failure to state a claim, arguing immunity from suit and that plaintiff’s lawyer’s request that OAE investigate constituted a new grievance, not an appeal of DEC’s decision.
The trial court granted OAE’s motion to dismiss based on the conclusion, among other reasons, that the Supreme Court has exclusive jurisdiction over disciplinary matters and that the two attorneys could move to dismiss the OAE complaint, and if that was denied, then file an appeal to the Disciplinary Review Board and the Supreme Court. Instead, the two attorneys appealed the dismissal of the verified complaint and moved for direct certification to the Supreme Court, which was denied.
The Appellate Division affirmed the dismissal of the verified complaint, concluding the Supreme Court has exclusive jurisdiction over attorney disciplinary matters. The Appellate Division recognized that the attorneys may want to seek judicial review of the OAE’s legal authority to prosecute the OAE complaint, and explained that “the opportunity for review of that issue exists in the Supreme Court, not the Superior Court[,]. . . in a variety of ways, including through a petition for certification or notice of appeal from this court’s present opinion.”
Setting aside its tortured procedural posture, the OAE complaint – and the ethics grievance from which it started – demonstrates that attorneys must proceed with caution when using social media to investigate an opposing party. The important takeaway for attorneys seeking to obtain and use social media evidence in litigation lies in the reason why OAE issued the complaint: the facts demonstrated there was a “reasonable prospect of finding unethical conduct by clear and convincing evidence.” In other words, there was enough information, based on the attorneys’ direction to their paralegal to send a “Friend” request to a represented party, without disclosing her association with the attorneys or the motivation for her request (the discovery of impeachment evidence), to potentially find unethical conduct by clear and convincing evidence. Attorneys must heed such warnings, and pay attention to the ethics opinions in their jurisdiction regarding whether and how attorneys may seek and use social media evidence. Stay tuned to this blog for regular updates.