Very recently, two Bergen County attorneys were charged with ethics violations by having their female paralegal become Facebook friends with the Plaintiff who was suing their client. They found out personal facts not available to the general public and used it to discredit him in discovery.
Was this good investigation or unethical behavior?
This issue reminds me a of a case tried by my deceased Partner, Robert J. Carluccio way back in the sixties called Massiah v. United States 377US201 (1964), which was a precursor case to the famous "Miranda" rights case, Miranda v. Arizona 384US436 (1966). Bob took Massiah "in forma pauperis" (for free) all the way to the United States Supreme Court. In this case, Federal Agents planted a bugged snitch to befriend Massiah while he was awaiting trial for drug charges in order to get him to make incriminating statements and adminssions while they listened in. The Court held that this behavior violated his Sixth Amendment constitutional right to counsel, as they "interrogated" him without counsel present.
In both cases, the litigant was "tricked" by his adversary who used a third person to get them to reveal things about themselves without counsel being presnt to later be used against them. The trust is that to preserve the functional integrity of our adversarial system, it is vital that, once proceedings have been intiiated, attempts to circumvent the proctions afforded by counsel cannot be tolerated.
The Bergen County attorneys are presently fighting the ethics charges claiming that they did not direct the paralegal to facebook friend the plaintiff, they were unfamiliar with facebook privacy settings, and that they did not intend to use a ruse or subterfuse.
Use of social media will raise new ethics questions and problems which we never had to deal with before. It will be very interesting to see how this issue will develop from a legal perspective. - JDG
Was this good investigation or unethical behavior?
This issue reminds me a of a case tried by my deceased Partner, Robert J. Carluccio way back in the sixties called Massiah v. United States 377US201 (1964), which was a precursor case to the famous "Miranda" rights case, Miranda v. Arizona 384US436 (1966). Bob took Massiah "in forma pauperis" (for free) all the way to the United States Supreme Court. In this case, Federal Agents planted a bugged snitch to befriend Massiah while he was awaiting trial for drug charges in order to get him to make incriminating statements and adminssions while they listened in. The Court held that this behavior violated his Sixth Amendment constitutional right to counsel, as they "interrogated" him without counsel present.
In both cases, the litigant was "tricked" by his adversary who used a third person to get them to reveal things about themselves without counsel being presnt to later be used against them. The trust is that to preserve the functional integrity of our adversarial system, it is vital that, once proceedings have been intiiated, attempts to circumvent the proctions afforded by counsel cannot be tolerated.
The Bergen County attorneys are presently fighting the ethics charges claiming that they did not direct the paralegal to facebook friend the plaintiff, they were unfamiliar with facebook privacy settings, and that they did not intend to use a ruse or subterfuse.
Use of social media will raise new ethics questions and problems which we never had to deal with before. It will be very interesting to see how this issue will develop from a legal perspective. - JDG
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