NJ attorney faces ethics violations for 'Facebook friending' opponent to gather info

It began with a simple friend request on Facebook. More than a decade later, a Hackensack attorney is in ethics trouble. 

The state Supreme Court’s Disciplinary Review Board voted last month to admonish attorney John Robertelli for crossing ethical lines when he instructed a paralegal to monitor the private social media accounts of Dennis Hernandez.

Hernandez sued the borough of Oakland after being struck by a local police car. But suspicious that he was feigning injury, Robertelli — who represented the borough — had an employee bypass Hernandez's privacy settings by sending him a vague friend request, according to the board's decision. 

Not only did the tactic amount to four ethics violations against Robertelli, notably for misrepresenting himself to uncover dirt on an opponent, the board also recommended that the case serve as an exemplar for how attorneys should respect online privacy rights in the digital age, and asked the state Supreme Court to draft an official policy. 

Such a move would bring New Jersey in line with other states, including Massachusetts, Colorado and New Hampshire, that limit an attorney's evidence gathering on social media to publicly available information. 

"This matter presents a novel ethical issue: whether an attorney can direct someone to friend an adverse represented party on Facebook and gather information about the person that is not otherwise available to the public,” according to the decision. “No reported case law in our State addresses the question."

The state Supreme Court has yet to accept the board's findings. 

Robertelli and his lawyer did not respond to requests for comment. 

The embattled attorney's ethics charges emerged from a civil complaint filed by Hernandez in October 2007 against Oakland and its Police Department, whom Robertelli represented. Hernandez alleged that, while doing pushups in the police station’s parking lot, he was struck by a police vehicle and suffered injuries that cost him an athletic and academic scholarship, the panel wrote. 

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A paralegal for Robertelli started running internet research on Hernandez and his injuries, until his Facebook profile was switched to private, according to the decision. 

In order to gain access, Robertelli gave the OK for Valentina Cordoba, his paralegal, to send Hernandez a direct message, telling him that she thought he looked like her favorite hockey player, the panel found. 

Hernandez allegedly replied that he "hoped that was a good thing," then accepted her friend request. 

Although Hernandez claimed he was disabled by the accident, Cordoba allegedly uncovered a video on his Facebook page of him wrestling with this brother. 

Hernandez later claimed his privacy was invaded after learning that the woman was on Robertelli’s payroll. The ethics board agreed. 

“Under the guise of purported ignorance, [Robertelli] completely delegated the surveillance of Hernandez to his paralegal, without any concern for the issues that could arise from conducting such an investigation on the internet,” the body wrote. 

The nine-member board was split in its decision to declare ethics violations against Robertelli. A four-member majority were in favor, while three voted to dismiss the complaint. The other two argued that Robertelli should be censured, a more severe punishment.  

The complaint against Robertelli lingered for years as it bounced through the state’s Office of Attorney Ethics. The case was initially referred to a local District Ethics Committee, which declined to review it. Only after Hernandez’s attorney asked the director of the OAE to examine the case was a complaint brought against Robertelli, the ethics board wrote. 

Robertelli responded by filing a lawsuit claiming that the OAE director had no authority to pursue a case after the District Ethics Committee declined. The lawsuit went all the way to the state Supreme Court, which ruled in favor of Hernandez in 2016 and assigned the ethics complaint to a special master. 

After three days of testimony, the special master declined to find ethics violations, in part because the witnesses had spotty recollections of the events.  

Hernandez, however, appealed to the state disciplinary board, which reversed the special master's decision. 

Tom Nobile covers Superior Court in Bergen County for NorthJersey.com. For unlimited access to the most important news from criminal trials to local lawsuits and insightiful analysis, please subscribe or activate your digital account today.

Email: nobile@northjersey.com Twitter: @tomnobile