Professor Lisa Mazzie posted a blog entry back in September about the use of Facebook and other social networking websites by lawyers. The post shed light on the trouble an attorney can face when the substance of his or her webpage falls short of professional standards. As Professor Mazzie explained, postings that “criticize” judges, “reveal” client details, or “belie” statements made before a court can land an attorney in hot water.
Those facts should not surprise present and former Marquette students: we were presented with the professional dangers of social networking during new student orientation.
It likely was only a matter of time, but it seems that state ethics committees have turned their attention to the judiciary. The Florida Judicial Ethics Advisory Committee released an opinion last month that, among other things, finds it inappropriate for a judge to “friend” lawyers on social networking sites when those lawyers may appear before that judge.
The Committee’s opinion is interesting because it takes aim not at the substantive statements of a judge or lawyer, but at the appearance of impropriety created by a lawyer’s inclusion on a judge’s friend list. The Committee explains:
The inquiring judge proposes to identify lawyers who may appear in front of the judge as “friends” on the judge’s page and to permit those lawyers to identify the judge as a “friend” on their pages. To the extent that such identification is available for any other person to view, the Committee concludes that this practice would violate Canon 2B.
Canon 2B states: “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, friendship status violates the second clause of Canon 2B:
The Committee believes that listing lawyers who may appear before the judge as “friends” on a judge’s social networking page reasonably conveys to others the impression that these lawyer “friends” are in a special position to influence the judge. This is not to say, of course, that simply because a lawyer is listed as a “friend” on a social networking site or because a lawyer is a friend of the judge, as the term friend is used in its traditional sense, means that this lawyer is, in fact, in a special position to influence 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.
Yet the Committee declined to set the same bar for judges’ campaign pages on sites like Facebook, stating that lawyers may be “fans” of an election effort without raising similar questions of undue influence so long as the manager of the judge’s page cannot “accept or reject the lawyer’s listing of himself or herself on the site.” Presumably, the affirmative act of accepting a “fan” would mirror the process by which judges and lawyers list each other as friends on their personal pages, raising questions of special influence.
The question now is whether other states will follow Florida’s lead or adopt even stronger measures to limit the effects social networking could have on the integrity of the judiciary (admittedly, I have not done extensive research on this topic, so perhaps some states already have similar rules in their judicial codes of conduct). Ultimately, this ruling may mark the opening of a new front in the judicial impartiality debate, which currently rages over the effects of judicial campaign finance and rhetoric (see Professor Richard Esenberg’s recent blog post).
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