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May 10th, 2013
Judges May ‘Friend’ Lawyers, Witnesses ABA Says
Judicial Social Media To Transmit
Professional Negligence News
Judges may ‘friend’ lawyers, witnesses, ABA says
COURTNEY L. DAVENPORT
Judges should be allowed to participate in social networking sites, including “friending” lawyers and witnesses who will appear before them, as long as they are “sensitive to the appearance of relationships with others,” the American Bar Association (ABA) said in a recent opinion “Judicial use of [electronic social media (ESM)] can benefit judges in both their personal and professional lives,” the ABA said. “When used with proper care, judges’ use of ESM does not necessarily compromise their duties under the Model Code any more than use of traditional and less public forms of social connection such as U.S. Mail, telephone, email, or texting.” Under the Model Code of Judicial Conduct, judges must always act in a manner that “promotes public confidence in the independence, integrity, and impartiality of the judiciary” and must “avoid impropriety or the appearance of impropriety.” Thus, the association noted, judges must be careful with their interactions—especially on social media sites, where posted comments can easily spread beyond the judge’s circle of connections and appear to compromise integrity or impartiality. The opinion warned that judges shouldn’t form relationships with people or organizations that might give the impression that they are in a position to influence the judge and must avoid interactions that could be interpreted as ex parte communications.
The ABA stopped short, however, of prohibiting judges from connecting with lawyers and others—for instance by “friending” them on Facebook—who may appear before the judge in a pending matter. The association said “context is significant,” and “simple designation as an ESM connection does not, in and of itself, indicate the degree or intensity of a judge’s relationship with a person.”
Nine state bars have issued opinions on judges’ use of social media. Some have prohibited judges from “friending” anyone who could appear before them. The Florida bar, for example, determined that judges may not “friend” those who appear in front of them because even people beyond the judge’s circle of “friends” might see that he or she is “friends” with them, which “conveys or permits others to convey the impression that they are in a special position to influence the judge.”
The California bar refused to issue a per se prohibition, but said “it is important to stress that a judge’s interactions with attorneys who may appear before the judge will very often create appearances that would violate” the state’s canons. The Maryland bar, in contrast, said that “attorneys are neither obligated nor expected to retire to a hermitage upon becoming a judge,” and determined that Facebook “friends” are no different than other social connections. It stressed, however, that judges should be aware of associated “ethical perils.”
Andrew Perlman, who teaches professional responsibility at Boston’s Suffolk University Law School, said the ABA correctly concluded that this issue must be decided on a case-by-case basis.
“The reality is that social media connections take many different forms, ranging from very casual to quite personal, so it is difficult to say that the mere existence of connections via social media should be off-limits,” he said. “The devil is very much in the details as to the nature of the connections, both in real life and online.”
Although she agrees with Perlman that there should not be a per se rule against judges “friending” people who appear before them, attorney Nicole Hyland, who handles ethics issues at a law firm in New York City, said it can be “extremely risky.” For instance, a judge may be inadvertently exposed to a lawyer’s comments on a pending case, making the judge vulnerable to accusations of ex parte communications or bias.“I think this should be handled much in the same way judges handle ‘real-world’ relationships. It’s certainly possible for judges to be acquainted with lawyers or parties who appear before them and still maintain their impartiality,” said Hyland. But she noted that “it may make sense for judges to ‘de-friend’ lawyers or parties during the pendency of a case to avoid any inadvertent ex parte communications.”
The ABA also declined to require that judges disclose every social media connection with someone appearing before them, finding that “because of the open and casual nature of ESM communication, a judge will seldom have an affirmative duty to disclose.” Instead, judges must undertake the same analysis they use when they are actually friends with the people. This rule makes sense, according to Perlman.“I don’t think the issues in this regard are any different from the issues that already arise when judges have social contacts with lawyers who appear before them, such as belonging to the same social club,” he said. “Whether the relationship needs to be disclosed necessarily depends on the circumstances.”Hyland said the ABA’s position that they’ll seldom need to disclose is “somewhat ambiguous,” and as a practical matter, the “prudent course is to disclose it.” She also found significant that the ABA did not require that judges investigate whether they are connected to anyone appearing before them.“The ABA’s opinion seems to recognize that most social media connections are extremely attenuated and should not, alone, be the basis for disqualifying a judge,” said Hyland. Tag: Professional Negligence – Attorneys.
Other Quoted
Companies Sought Help From Privacy Vendors. They Still Got Fined
Daniel M. Goldberg is quoted in Bloomberg Law on problems faced by companies who have relied on compliance vendors to help them navigate new privacy laws. The article stated that vendors operating with little oversight, outdated tech have “left businesses with consumer-facing websites open to fines and other enforcement actions.”
Bloomberg Law noted, “For example, giving consumers the option to disable cookies may not turn off all of a company’s tracking technology. So consumer data could still be automatically sent to a third party for advertising.
“Vendors cannot just repurpose tools meant to comply with EU’s data protection law for California’s rules, said Daniel M. Goldberg, chair of the data strategy, privacy & security group at Frankfurt Kurnit Klein & Selz PC.
"‘Many solutions are solutions that are built for one purpose,’ Goldberg said, adding that some vendors’ ‘default configurations often aren’t drafted in a way that is sufficient to address US privacy law.’” View Article.
July 14 2025
The Battle over California’s Bill to Regulate how Insurers Handle Personal Data
Rick Borden is quoted in the Continuing Education of the Bar’s (CEB) DailyNews in an article on the proposed California data privacy law, Senate Bill 354, which would extend greater data privacy protections to the insurance industry. The Insurance Consumer Privacy Protection Act (ICPPA) 2025 would expand the California’s existing insurance-specific privacy law, known as the Insurance Information and Privacy Protection Act (IIPPA).
The article stated, “Rick Borden, a partner with Frankfurt Kurnit Klein & Selz who focuses on data strategy and privacy, said California may be acting too soon because revised regulations and guidance are coming down the pike. A working group at the National Association of Insurance Commissioners (NAIC) is moving ahead with updates to its Model law 672, which each state has either adopted or adopted in substantially similar form. ‘Let them do their stuff,’ Borden said.”
He pointed to the American Property Casualty Insurance Association (APCIA) comment letter, written on behalf of 1,200 companies comprising nearly 60% of the country’s property and casualty insurance market. It also recommended CCPA (California Consumer Privacy Act) regulators to wait.
But the bill’s author Senator Monique Limón and its sponsor, California Insurance Commissioner Richard Lara, are moving forward with the bill.
Mr. Borden also noted “that advertising and marketing is one of the most important areas that California’s proposed new protections could cover.”
“‘Certain advertising is not subject to GLBA [Gramm-Leach-Bliley Act], so already would be subject to CCPA,’ he said. ‘Because you’re not their customer, yet. And this isn’t about a financial transaction with them.’ The revised insurance laws would cover data collection, including for advertising, that is a part of covered insurance relationships.” View article. (Cost-free registration required.)
July 8 2025
In a Data-Obsessed World, Attorneys Welcome Privacy Law Specialization
The Los Angeles Times quotes Daniel M. Goldberg on the California State Bar’s decision to offer a specialization in privacy law. Mr. Goldberg stated that the area of privacy regulation has been exploding with growth, with California on the forefront —driving a need for designating leaders in the field. “‘The law is very complex. But on top of the law being complex, the specialization really requires a level of technical expertise. The law talks all about measures that companies need to take with respect to collection, use, disclosure of data and opting out. But if you don’t understand how the technology works or how the ecosystem works, then it’s an area that would be very, very difficult for you,’ he said.”
“He added, ‘One thing about privacy law is that you also have to be an expert on what’s going on in the news, the latest changes and whether it has to do with ad-tech platforms or AI. If you’re not up with the latest changes, you’re going to fall behind very quickly.’”
Mr. Goldberg emphasized California's pioneering role in privacy regulation. He referenced the state’s passing “the first comprehensive privacy law (the California Privacy Act or CCPA) in 2018, which he said catalyzed the creation of similar laws across other states and established California as the national leader in privacy legislation.” He noted the state had also been a leader in enforcement, citing activity of the Attorney General’s office and the California Privacy Protection Agency’s multiple enforcement actions.
Mr. Goldberg also explained why data privacy is an increasing legal practice at law firms: “‘It’s incredibly lucrative just because it’s such a broad area. It really is a subject matter expertise that goes in so many different subcategories of practices, and so almost every firm now has to have a privacy expert.'" View Article
June 26 2025