It was bound to happen sooner or later...
Mary Pat Gallagher of the the NJ Law Journal reports here (subscription required) that two NJ defense lawyers face ethics charges after their paralegal allegedly friended an attorney-represented plaintiff in a personal injury case.
It all started innocently enough...
And then, defense counsel allegedly asked the plaintiff "very specific" questions at deposition that indicated that counsel had gotten the goods from a non-public portion of the plaintiff's Facebook page. This concern appears to have been validated when the defendant later supplemented its discovery responses with Facebook pages from the plaintiff and his friends.
Thereafter, the plaintiff filed an ethics complaint with NJ's Office of Attorney Ethics, in which he claims that a paralegal working with defense counsel friended him to obtain non-public information from this Facebook page. The NJ Law Journal article is silent both as to why the plaintiff accepted this friend request.
In any event, the attorneys involved have each been charged with violating multiple provisions of the rules of professional ethics, including those governing communications with represented parties, failure to supervise a non-lawyer assistant, and conduct prejudicial to the administration of justice.
According to the article, the attorneys claim that they merely instructed their paralegal to "perform a broad and general internet search" for information relating to the plaintiff and never instructed her to actually friend the plaintiff. Further, both defense attorneys deny being familiar with Facebook's privacy settings. Notwithstanding, both dispute that the friend request was pretextual because the paralegal used her real name when making the friend request.The article concludes by highlighting that while three other bar associations (Philly, NYC, and San Diego) have published ethics opinions on lawyers (and their agents) using Facebook to friend litigants, the NJ Bar does not.
Three takeaways from this story:
Tangentially related, in the HR space, I believe that, generally, HR should not be Facebook friends with employees. I actually get this question a lot from HR professionals: Should we friend our employees? Certainly don't require it as a condition of employment. And don't do it to keep tabs on them. (Although, I think that it is fine for workplace friends to be Facebook friends too. I am Facebook friends with some of my colleagues).
How could using Facebook to monitor employees backfire? Imagine a situation in which HR friends two employees, one of whom was sexually harassing the other on Facebook. HR misses the sexual harassment. The victim never complains and, instead, files a lawsuit. The victim may be able to successfully argue that the company should have known about the sexual harassment, but did nothing to stop it. That would negate a critical employer defense.
This article was originally published on Eric B. Meyer's blog, The Employer Handbook.
For more information about LexisNexis products and solutions connect with us through our corporate site.