In this day and age, checking out an individual's social media accounts is often the best way to gather evidence against them. Even with their lawyers warning them not to post comments about their ex, avoid posting photos of your new girlfriend, etc., most people just can't resist the instant gratification of sites like Facebook and Twitter. Thus, it's no surprise that divorce attorneys often turn to these sites for supporting evidence on allegations such as adultery and cohabitation. Attorneys, however, are held to the same privacy laws as their clients when it comes to accessing private information, meaning they cannot engage in acts such as hacking or setting up false accounts in order to obtain information. But what about actions that are legal, yet highly unethical? Are attorneys held to an ethical standard for gathering evidence from online sources, and if so, could this have an impact on the outcome of the case that he or she is working?
There are no clear answers to either question, although the issue of unethical social media use by attorneys is something that can be reviewed by the state Office of Attorney Ethics (OAE). Furthermore, the state OAE has the discretion to overrule the district OAE's refusal to investigate the grievance, as decided by the NJ Supreme Court in 2016. The case that brought about this ruling involved a personal injury suit in which the plaintiff was suing the borough of Oakland for injuries he sustained after allegedly being hit by a police car. The plaintiff had a private Facebook page, meaning that access to most of his information was limited to “Friends” – users to whom he had given access. The borough's attorney told his paralegal to send a friend request to the plaintiff, and she did, without mentioning her connection to the pending litigation.
When the defense later sought to introduce printouts of the plaintiff's Facebook page, and listed the paralegal as a witness, the plaintiff connected the dots and accused the defense counsel of spying on him. His complaint to the OAE cited numerous violations, including improper communication with a person represented by counsel and engaging in dishonesty, fraud, deceit or misrepresentation. The Supreme Court's ruling didn't rule on whether the defense counsel had engaged in unethical acts, but it is still significant that they ruled on the state OAE's right to investigate the grievance, regardless of the district OAE's decision. This brings us to the second question of how an attorney's shady behaviors can influence his or her client's case. While no decision has been made on the ethics claims in this case, the bigger issue for the client is whether or not the evidence gathered through the paralegal is admissible. This is why it's important for clients to work with honest, ethical attorneys who understand the long-term implications of their actions. For an experienced attorney you can trust, please speak with the family law attorneys of Villani & DeLuca, P.C.