by John G. Browning
Spencer Fane LLP
The news coming out of New York recently should have caused lawyers everywhere to collectively shudder: a paralegal working at the U.S. Attorney’s office in New Jersey was indicted on witness tampering, obstruction of justice, and conspiracy charges in Brooklyn federal court. 44 year-old Tawanna Hilliard used her position and official work computer at the U.S. Attorney’s office to help her 28 year-old son Tyquan, a member of the Bronx 5–9 Brims branch of the notorious Bloods street gang, who is currently serving a 10 year prison sentence for robbery. According to federal authorities, in 2016, Ms. Hilliard used her work computer to help the gang find cooperating witnesses, as well as to obtain the personal information of a rival gang member that she thought was “trying to jam my son up.” And in 2018, during the pending robbery case against her son, Hilliard allegedly posted a video on YouTube showing a post-arrest statement given by her son’s co-defendant about the May 2018 robbery in order to prove he was “snitching.” She allegedly titled the video “NYC Brim Gang Member Snitching Pt. 1” and the video’s circulation led to the witness and his family receiving death threats from fellow Bloods gang members.
That video clip had been obtained by the U.S. Attorney’s office as discovery material in Tyquan Hilliard’s case. A September 2018 search of the paralegal’s home led to video interviews with the co-defendant and another accomplice being found on her computer. Investigators also recovered text messages from Ms. Hilliard in which she complained that the co-defendant was “giving up murders, victims, shooters and all” and that her son “has no line of defense because his co-d told everything.” Hilliard, who pleaded not guilty, was released on a $75,000 bond but was ordered to wear an ankle monitor, stay off social media, and refrain from contact with her son and other gang members. Her son had allegedly sent letters to the FBI and a senior AUSA in the Eastern District of New York threatening to upload more video clips of his co-defendant’s statement in an attempt to put him in danger.
The charges against Tawanna Hilliard illustrate yet another dimension of the ethical risks that can await lawyers when it comes to social media use. In addition to the myriad ways in which lawyers can find themselves in trouble for their own use of social media—from contacting represented parties to betraying client confidentiality—attorneys must also be mindful of their ethical obligations regarding their nonlawyer employees, such as legal assistants. Rule 5.03 of the Texas Disciplinary Rules of Professional Conduct (Responsibilities Regarding Nonlawyer Assistants) states that, when it comes to nonlawyers over whom the attorney has direct supervisory authority, attorneys shall be subject to discipline if: “(1) the lawyer orders, encourages, or permits [conduct that would be a violation of these rules]; or (2) the lawyer . . . with knowledge of such misconduct by the nonlawyer knowingly fails to take reasonable remedial action to avert or mitigate the consequences of that person’s misconduct.”
The Comment to this Rule goes on to explain that lawyers in such positions, whether in a law firm or a government agency, should “give such assistants appropriate instruction and supervision concerning the ethical aspects of their employment” and should “make reasonable efforts to ensure that the organization has in effect measures” to give “reasonable assurance” that nonlawyers’ conduct will be compatible with the professional obligations of the lawyer. Because of this Rule and the additional responsibility it imposes on lawyers, adopting and enforcing a comprehensive social media or internet communications policy is critical for private law firms, government agencies, and in-house legal departments.
Such a policy might have helped two New Jersey civil litigation attorneys. John Robertelli and Gabriel Adamo. The pair were defending a New Jersey town in a personal injury lawsuit over a police vehicle allegedly striking a pedestrian, Dennis Hernandez. According to a disciplinary action brought against Robertelli and Adamo (and which went all the way to the New Jersey Supreme Court), the two defense attorneys—stymied by the fact that plaintiff Hernandez’ Facebook page was set to private—allegedly directed their paralegal to “find a way” to access the profile. She sent Hernandez a friend request (which he accepted), and soon the lawyers had access to and gained information from Hernandez’ private profile. When the defense lawyers later tried to use screen captures of content from Hernandez’ Facebook page, the plaintiff’s attorney realized improper contact had been made with his client, and the ethics complaint quickly followed.
Even if one were to accept Robertelli’s and Adamo’s claim that they didn’t direct their paralegal to communicate with a represented party, other aspects of their defense remain troubling. Once they received information that resulted from such improper contact, the record is silent as to any remedial measures taken to mitigate the consequences of their assistant’s actions. In addition, Robertelli’s and Adamo’s claim of being legal Luddites “unfamiliar with the different privacy settings on Facebook” is no viable defense in an age in which lawyers are now held to a standard of being conversant in the “benefits and risks of relevant technology,” as part of providing competent representation. As the examples of both the Tawanna Hilliard case and the Robertelli/Adamo matter illustrate, lawyers today must be sensitive to not only their own conduct on social media, but the activities of their nonlawyer assistants as well.
Not many Texas lawyers probably have had the interesting experience of being nearly naked on the first floor of a federal courthouse.