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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