Add Judges To The List of Professionals Who Must Take Care In Using Facebook

facebook-scales-2Professor 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).

This Post Has 6 Comments

  1. Jeffrey J. Szczewski

    Fan pages don’t require the controlling party, which might not even be the page’s subject, to “accept” fans; I’m not sure if it’s even possible to “reject” a fan. What makes this topic even more interesting is Facebook’s recent decision to remove the ability to make one’s friend list private.

  2. Stacie Rosenzweig

    I do have a couple of judges on my friends list–not to curry favor, but because they were instructors or neighbors.

    My ex once ran into the defense attorney and the judge in a very prominent criminal case, having a drink at a restaurant bar, right in the middle of said case.

    Hm…plenty of judges and lawyers are friends in real life. What makes Facebook different?

  3. Andrew Golden

    I agree with Stacie. And, furthermore, what about judges who befriend attorneys prior to joining the bench? Must he/she remove those friends as soon as he/she puts on the robe?

    I’m all for avoiding the appearance of impropriety, but I think that sites like Facebook are so prevalent these days that no one assumes that the “friends” one has indicates some untoward connection or bias. I’m not sure this isn’t much ado about nothing.

  4. Stephen Boyett

    Bruce Vielmetti, over at the Milwaukee Journal Sentinel’s legal blog “Proof and Hearsay,” posted a related story about a judge using lawyers’ Facebook pages to catch those lawyers in lies.

    Interesting…perhaps “friend” status provides some benefits for judges.

  5. Martin Tanz

    The Florida Committee doesn’t understand facebook and, if they did, they would realize that judges and lawyers friending each other on facebook keeps both honest.

    As lawyers, we all have to abide by our professional ethics. Only a fool would violate client confidentiality or rip a local judge when other judges are on his or her friends list, as this would surely get back to the judge in question or result in getting reported to OLR.

  6. Another issue created by the Internet is advertising & performing legal work for people in states where you are not licensed to practice law. If I am a Utah attorney that regularly creates Alaska LLCs for specialized purposes (see, the state of residence of the members is irrelevant. If a California resident views my website & asks me to create an Alaska LLC, I think this is ok because it is a multijurisdictional practice area. The model rules allude to this but there isn’t much guidance in an area that is becoming more and more prevalent because of the Internet.

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