January/February 2010

Being a "Friend" of the Court May Get the Judge in Trouble

Holland & Knight Newsletter
Timothy J. Conner

Many people use social networking websites like MySpace, LinkedIn and Facebook to connect with others and communicate information to a wide-ranging audience. Judges are people too – and some of them are downright sociable. They routinely socialize with other lawyers, for example, in any number of settings. So what happens when a judge decides to use a social medium to become “friends” with lawyers who appear before him or her? Would you feel at a disadvantage if the opposing lawyer in a case was a “friend” of the judge’s on Facebook, and you weren’t?

In November 2009, the Florida’s Judicial Ethics Advisory Committee issued an opinion based on an inquiry from a Florida judge about the use of social media. Although the Committee approved of some uses, it specifically said that a judge may not permit a lawyer who could appear before that judge to be shown as a “friend” on the judge’s social networking page because it “reasonably conveys to others the impression that these lawyer ‘friends’ are in a special position to influence the judge.” The Committee reasoned that this would violate Canons 2B and 5A of the Code of Judicial Conduct.

Canon 2B provides that “[a] judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge.” According to the Committee, three elements are required for a social networking site to fall within the prohibitions of Canon 2B: (1) the judge must establish the social networking page; (2) the site must give the ability to accept or reject a “friend” request, or show the judge as a “friend” on another’s page; and (3) the identity of the “friends” on the judge’s site, or of the judge being shown as a “friend” on someone else’s page, must then be communicated to others. The Committee said, “it is this selection and communication process” that violates Canon 2B.

In addition, Canon 5B requires judges to conduct extrajudicial activities so that they do not cast reasonable doubt on their capacity to act impartially; undermine their independence, integrity, or impartiality; demean the office; interfere with the proper performance of their duties; lead to frequent disqualifications; or appear to a reasonable person to be coercive. According to the Committee, the listing of lawyers who could appear before the judge as “friends” conveys the impression that the lawyer may occupy a special sphere of influence over the judge. “The issue, however, is not whether the lawyer actually is in a position to influence the judge, but instead whether the proposed conduct, the identification of the lawyer as a ‘friend’ on the social networking site, conveys the impression that the lawyer is in a position to influence the judge. The Committee concludes that such identification in a public forum of a lawyer who may appear before the judge does convey this impression and therefore is not permitted.”

A minority of the Committee dissented from the view that in friending lawyers judges reasonably imply that they are in a special position to influence the judge. The minority asserted that social networking sites have become ubiquitous, and that the term “friend” does not convey the same meaning it did pre-Internet; instead, they believe it merely conveys that the person is an acquaintance or contact.

The Committee held that so long as the three elements it identified are present, the prohibition applies to all social media. Although its opinions are not binding on the Florida Judicial Qualifications Commission that oversees complaints regarding judicial conduct, compliance with such an opinion is evidence of good faith on the part of the judge.

Interestingly, the opinion follows closely on the heels of a public reprimand issued by the North Carolina Judicial Standards Commission to a judge over the use of Facebook. During a trial, the judge and an attorney for one of the parties designated each other as “friends” on their respective Facebook pages. Both posted comments concerning the trial that revealed at least some level of thinking about what was going on with the case, the lawyer going so far as to post the comment “I have a wise Judge.” The Commission found that these acts violated various Canons of the Code of Judicial Conduct, including the prohibition against ex parte communications.

As the use of social networking sites continues to grow, new issues regarding their use will arise. Although it should be obvious that ex parte communications are prohibited whether they occur online or off, just how to characterize the labeling of someone as a “friend” on Facebook is less clear. That many people listed as a “friend” do not fall within the usual definition of a personal friend does not necessarily answer the question: how do you know if a “friend” on a judge’s page is in one category of friendship or another? At the same time, it is not reasonable to expect judges to be isolated from the community, and traditionally this is recognized by the Code of Judicial Conduct. For now, the Florida Committee has made itself clear with respect to social networking sites.

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