Andrew Rubin, Esq.

Social media becomes arena for legal malpractice accusation

Social media sites such as Facebook and Twitter are well known as places to meet friends, make acquaintances and even to try to make money. The New Jersey Supreme Court has recently taken up a case in which two attorneys have allegedly used a social media site to expand the frontiers of unethical legal practices.

It is common practice among attorneys that once an individual has retained legal counsel, they are no longer free to communicate directly with that person, including communication by anyone under their direction such as a paralegal. Yet this behavior, among others, is what the attorneys in question have been accused of doing – virtually, and indirectly.

The difficulty of this matter arises from an attempt to use social media as an unofficial means of legal discovery, the means by which attorneys can gather information in possession of the other side of a dispute. According to the New Jersey Office of Attorney Ethics, the two attorneys had their paralegal “friend” on Facebook the plaintiff in a personal injury case in which they represented the defendant. The paralegal was then to use that connection as a means of learning more about the plaintiff’s claimed injuries.

The accused attorneys have claimed that the Office of Attorney Ethics has no jurisdiction over their use of social media in this way, but the state’s Appellate Division has disagreed with that claim. The supreme court has chosen to take up the matter of whether the ethics case against the attorneys has been properly brought.

Aside from refraining from contacting a person who is represented by an attorney, the case at hand also highlights other areas in which attorneys can run afoul of legal ethics questions, including the duty to properly supervise attorneys and legal staff under their control and to avoid conduct that is deceptive or fraudulent or which can be prejudicial to the administration of justice.

The vast majority of New Jersey attorneys conduct their practices professionally and ethically, but in the exceptions when some do not, sometimes it can be necessary to work with an attorney experienced with legal malpractice matters to help deal with any possible breaches of the Rules of Professional Conduct.

Source: New Jersey Law Journal, "High Court to Hear Attorneys' Facebook 'Friending' Case," David Gialanellea, June 23, 2015

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