Facebook is bringing some complex wrinkles to modern court cases. Just last month a judge allowed a man to serve his ex-wife legal papers over Facebook when she proved impossible to contact through traditional means, and many divorce lawyers admit that they use Facebook to compile evidence against a partner in child custody cases.
But the integration of Facebook into legal affairs is being met with some resistance in a New Jersey appeals court, which is embroiled in a legal battle after a friend request during a personal injury lawsuit brought ethics into question.
The original case began after then 18-year-old plaintiff, Dennis Hernandez, was doing push-ups in his driveway and was hit by police officer Brian Coughlan’s cruiser. The impact fractured his femur, which only recovered after multiple surgeries.
Allegedly, Coughlan’s defense lawyers assigned a paralegal to friend Hernandez on Facebook in order to view information on his profile, which court documents claim was not available to the public.
The social media prying came to light during the deposition, at which point the defense lawyers asked Hernandez about dancing, travel and other activities he posted about on Facebook that would have brought the severity of his injuries into question.
Photos and video from Hernandez’s Facebook page were later used as evidence against him, but since the Facebook evidence was produced after the discovery deadline, Bergen County Superior Court Judge Rachelle Harz barred its use, and the case was settled for $400,000 in 2010.
But Hernandez and his lawyer weren’t done. In light of the questionable Facebook snooping, they filed an ethics grievance. It was dismissed by the district ethics committee, but the Office of Attorney Ethics later found basis to investigate and filed a formal complaint in 2011.
The complaint alleges that the paralegal who sent the friend request to Hernandez did so in violation of his privacy settings, which he’d recently upgraded. Both defense lawyers are being charged, but they claim they never told their paralegal to friend him, just to perform a general internet search.
“We have long instructed clients to not post on Facebook or other social media about their case and to be really cautious about what others post,” explains Gary Burger, Partner and Attorney at Canton & Burger, LLC. “If a person claims serious injuries to their neck or back due to an injury caused by the Defendant, and they post on Facebook images of them carrying heavy loads, doing handstands or other strenuous activity, then they are disproving the extent of their injuries and harming their claim to compensation. Defendants regularly ask about Facebook and social media posts and subpoena those records.”
With the intervention of the OAE, the problem has become one of jurisdiction, not social media. A panel will convene this week to determine whether or not the OAE can file ethics grievances against lawyers even after district ethics committees have turned them down.
Since social media is still a fairly new phenomena, it’s likely that many precedents like this will need to be set, to determine how Facebook and court matters can be allowed to intersect.