Nicole Black, The Daily Record Newswire
Is it ethical for judges to interact on social media and “friend” the lawyers who may appear in their court?
The majority of jurisdictions that have addressed this issue have concluded that it is generally permissible for judges to become online “friends” with attorneys appearing before them, as long as the judges are careful to avoid the appearance of impropriety, avoid ex parte communications, and otherwise ensure compliance with applicable ethical rules. (See, 2009 Advisory Opinion 08-176 of the New York Advisory Committee on Judicial Ethics, the Supreme Court of Ohio’s Board of Commissioners on Grievances & Discipline Opinion 2010-7, and the 2010 Ethics Committee of the Kentucky Judiciary Opinion JE-119).
However, in 2010, the California Judges Association, while agreeing with this general principle, in Judicial Ethics Committee Opinion Number 66, set forth one caveat: The committee concluded that, although it was ethical for judges to become “friends” with lawyer who might appear before them, the judges were required to “unfriend” attorneys who actually did appear before the judge and after doing so, were required to notify all parties of the “unfriending.”
In comparison, the Florida Supreme Court’s Judicial Ethics Advisory Committee has taken the minority position on judicial use of social media. In November 2009, in Opinion 2009-20, the committee concluded that although judges could join and participate on Facebook, becoming “friends” with attorneys who may appear before them was impermissible.
The committee reasoned that allowing judges to do so would give the impression that the attorney was in a position to exert special influence upon the judge. This determination was later reaffirmed by the Committee in Opinion 2010-06.
Earlier this month, this advisory opinion was cited by Florida’s Fourth District Court of Appeal in Pierre Domville v. State of Florida, No. 4D12-556. In Pierre Domville, the court held that the judge, who was Facebook “friends” with the prosecutor in a case pending before the judge, was required to recuse himself.
The court explained: “Judges must be vigilant in monitoring their public conduct so as to avoid situations that will compromise the appearance of impartiality ... (Because facts have been alleged) that would create in a reasonably prudent person a well-founded fear of not receiving a fair and impartial trial, we quash the order denying disqualification ...”
The rationale for this decision is short-sighted and misguided. Online connections are no different than those made offline. Certain types of offline interactions with judges have always been considered acceptable and are commonplace, such as lunching or golfing with a judge. Online “friend” connections are comparable to offline interactions and should not be forbidden simply because the medium for the interaction is different.
That the status of the judge’s friendship with an attorney is arguably more public than a traditional friendship does not change the nature of the relationship, and just as with offline friendships, a judge’s assurances that the relationship will not effect his or her rulings should be sufficient.
For that reason, the California ethics opinion offers a more sensible approach, assuming it even makes sense to forbid social media relationships between judges and counsel appearing before them. Although it does serve to inhibit judicial interaction on social media, at least California has adopted a stance that allow judges to exist in the same century as the rest of the world.
Like it or not, judges live in the present, just like everyone else. It is unrealistic — and unfair — to issue ethics decisions that require judges to live in a 20th century bubble. Since sending them back to 1990 in a time machine isn’t an option, the wisest course of action is to adopt reasonable standards that reflect 21st century realities.
Judges are human beings with lives outside the courtroom. They have preexisting friendships with attorney colleagues that didn’t cease to end when they became judges. To issue ethics decisions that prevent judges from interacting on social media with the very same lawyers with whom they regularly interact in public is nothing short of ridiculous. Let’s hope Florida remains in the minority on this issue.
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Nicole Black is VP at MyCaseInc.com, a cloud-based law practice management platform. She is also of counsel to Fiandach & Fiandach in Rochester and is a GigaOM Pro analyst. She is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She speaks regularly at conferences regarding the intersection of law and technology. She publishes three legal blogs and can be reached at niki@mycaseinc.com.
