A 'Friend' at Court?

475264761_converted

John G Browning takes a brief look at judges’ activities on social media and how this issue is being controlled in the United States.

The issue of judges blogging, tweeting, and posting on Facebook and other social networking sites is a controversial subject that transcends international borders. Here in the United Kingdom, of course, guidelines adopted in 2012 ban judicial office holders from such activities in order to avoid damaging “public confidence in their own impartiality or in the judiciary in general”.


In France, tweets by two magistrates during a 2012 attempted murder trial, in which they joked about slapping witnesses and strangling another judge out of exasperation, attracted media attention and prompted a formal inquiry by judicial authorities. Malta has addressed the subject, amending its judicial Code of Ethics in 2010 to ban judicial membership in social networking sites as “incompatible with judicial office”. But in the United States, a consensus view on this topic has yet to emerge, as the judicial ethics authorities in the multiple jurisdictions weighing in to date reflect a broad spectrum – from approval of judges being active on Facebook to outright prohibition, in which counsel being Facebook “friends” with the judge is grounds for the jurist’s automatic disqualification.

Crossing the line

In all fairness to those favouring an outright ban on “Facebooking” judges, there’s no shortage of examples of judges running afoul of social media. Judges in Florida and Kansas, for example, violated judicial canons against making misrepresentations and using judicial office to endorse candidates for political office by circulating inaccurate YouTube election campaign videos and “liking” a candidate on Facebook. One Texas judge ignited a firestorm of controversy by posting on Facebook about the speeding ticket defendant in his court, Texas A&M University football star Johnny Manziel. More seriously, a Georgia judge retired from his bench in 2009 amidst an investigation into his relationship with a female defendant in his court facing drug charges, a relationship that began with the judge contacting her via Facebook and eventually included advising her on her case, loaning her money, and visiting the woman at her apartment. Perhaps the most notorious incident of judges and social media miscues is that of North Carolina Judge B Carlton Terry. In 2009, the North Carolina Judicial Standards Commission publicly reprimanded Judge Terry for his conduct during a child custody and support proceeding the year before. During that trial, Judge Terry had friended one side’s attorney on Facebook, and had multiple ex parte communications with the lawyer via the social networking site. They discussed everything from trial strategy and witnesses to how long the case would last; at one point, the attorney posted “I have a wise Judge,” proving that one can suck up to a judge even in cyberspace. Judge Terry disclosed the Facebook exchanges to the other side shortly before he ruled, prompting motions to disqualify the judge, vacate his ruling and grant a new trial. In reprimanding the judge, the Commission observed that his behaviour “constitute[d] conduct prejudicial to the administration of justice that brings the judicial office into disrepute”.

An ethical minefield

With incidents like these, it’s no surprise that even states that give cautionary approval to judges being active on social media point out that it can be an ethical minefield for the unwary. States like New York, Kentucky, Maryland, South Carolina, Massachusetts, Tennessee, Oklahoma, Ohio, and California all permit judges to have social networking profiles, while reminding judges that existing rules of judicial conduct apply to online environments as well as the “real world”. New York’s judicial ethics advisory opinion on the subject, for example, warns judges to avoid improprietyand even the appearance of it when using Facebook and other sites, and to be mindful of the appearance that might be created by establishing a Facebook “friendship” with a lawyer or anyone else appearing in the judge’s court, including parties and witnesses. Some judicial ethics authorities, like the Supreme Court of Ohio’s Board of Commissioners on Grievances and Discipline, go beyond sweeping generalisations and other specific admonitions about online behaviour, such as refraining from making comments about matters pending before that judge; avoiding social networking interactions with individuals or groups that might erode confidence in the independence of judicial decision making; refraining from using sites like Facebook to conduct independent research on parties, witnesses, or matters before the judge; not giving legal advice to others; and maintaining dignity in the comments, photos, and other information shared by the judge with his or her social network.

A Facebook “friend”?

May a judge be Facebook “friends” with an attorney or party who might appear before him? Once again, judicial ethics authorities across the United States run the gamut. The tentative approval expressed in the American Bar Association’s Formal Opinion 462 on 21 February 2013 is typical: being “friends” with lawyers or parties may be okay, but “context is signifi cant” and judges must carefully consider whether such a connection mandates disclosure or recusal. According to the ABA, judges should subject their online relationships to the same analysis as online relationships. Most of the other states looking at this question agree with this approach, including Maryland, whose Judicial Ethics Committee saw “no reason to view or treat ‘Facebook friends’ differently”. A few states like Oklahoma, Massachusetts, and California [state] that judges should not be “friends” with lawyers and others who appear before them. California’s ethics opinion provides a particularly thoughtful analysis, pointing out that there are a number of factors to consider with appearance issues of attorney “friends” arguing before a given judge. These include the number of friends (the greater the number of “friends” on the judge’s page, the less likely it is that any one is in a position to influence him), how the judge determines whom to “friend” (a judge who accepts all “friend” requests is less likely to create an impression of partiality than one who “friends” more selectively), and even the nature of the site (a judge with minimal participation on a social media page for a group like an alumni organisation or law society is less likely to create the perception of inappropriate influence than a judge with a profile on a site providing more unique and personal details to the public).

The draconian approach

Among the states, Florida has adopted the most draconian approach to judges and social media. Between 2009 and 2013,
the Florida Supreme Court Judicial Ethics Advisory Committee issued no less than five separate ethics opinions, banning judges from having lawyers as Facebook friends, LinkedIn connections, or Twitter followers. The ethical prohibition against judicial Facebook friendships has withstood tests in Florida’s courts as well. In 2012, a Florida appellate court reversed a trial judge’s denial of a disqualification motion in a criminal matter, where the sole grounds for  disqualification was the judge’s Facebook “friendship” with the prosecutor handling the case. Citing the Judicial Ethics Advisory Committee’s November 2009 opinion, the appellate court in Domville v State felt that Domville had “alleged facts that would create in a reasonably prudent person a well-founded fear of not receiving a fair trial” and noted that “[j]udges do not have the unfettered social freedom of teenagers”. But while the January 2014 case of Chace v Loisel followed Domville’s holding (disqualifying a judge for her improper, ex parte Facebook friend request to one of the parties in a divorce action in her court), that appellate court simultaneously expressed reservations with that decision’s underlying rationale (and by extension, the ethics opinion that spawned it). The court in Chaceobserved that the Florida rule it was compelled to follow betrayed a fundamental misunderstanding of the insignificance of “friendship” on social networking sites:“The word ‘friend’ on Facebook is a term of art. A number of words or phrases could more aptly describe the concept, including acquaintance and, sometimes, virtual stranger. A Facebook friendship does not necessarily signify the existence of a close relationship... Domville’s logic would require disqualification in cases involving an acquaintance of a judge... Requiring disqualification in such cases does not reflect the true nature of a Facebook friendship and casts a large net in an effort to catch a minnow.” To borrow a phrase from the social networking lexicon to best describe the issue of judges’ activities on social media, it’s complicated. On the one hand, social networking platforms certainly can represent an ethical minefield for a jurist who is unwary or not tech-savvy. Yet at the same time, there are many positive aspects to judges using social media, including remaining accessible to the public (an increasingly important consideration for judges in the many jurisdictions in the United States where judges are elected rather than appointed). Consequently, it is hardly surprising that according to an annual survey by the US’s Conference of Court Public Information Officers, the number of judges using social media goes up every year. Above all, judges embracing social media need to use caution and remember that traditional ethical standards will still apply to new technologies.

Category: 
Issue: 
Author details: 
John G Browning

John G Browning is a Dallas attorney with 25 years of experience in litigating cases in state and federal courts. He is the author of three books and numerous articles on social media and the law, and he serves as an adjunct law professor at Southern Methodist University Dedman School of Law. Mr. Browning is a graduate of Rutgers University and the University of Texas School of Law.