By IT-Lex Intern Joey Chindamo (LinkedIn)
The question of whether Florida judges and lawyers can be Facebook “friends” will not be answered by the Florida Supreme Court right now. WTXL reported that the state’s highest court voted 5-2 on Thursday against hearing the appeal of a judge who was removed from a criminal case because he and the prosecutor were friends on the popular social network.
The South Florida Sun-Sentinel explained how this all started:
Pierre Domville, of Sunrise, is charged with three counts of lewd and lascivious battery on a child. His attorney filed a motion to have Judge Andrew Siegel disqualified because he was friends on Facebook with assistant state attorney Nicole Alvarez, who is no longer with the department.
The Broward County judge denied the defendant’s motion to recuse, which resulted in an appeal to the Fourth District Court of Appeal. The appellate judges looked to a 2009 opinion from the Judicial Ethics Advisory Committee for guidance, and the language appears fairly straightforward:
Whether a judge may add lawyers who may appear before the judge as ‘friends’ on a social networking site, and permit such lawyers to add the judge as their ‘friend.’
Seems rather open and shut, right? According to the Fourth DCA appellate panel’s opinion [PDF], it was. Examining the commentary included in the JEAC opinion, the judges noted that the main problem with Facebook friendships between judges and lawyers is the perceived impropriety:
[T]he Committee concluded that when a judge lists a lawyer who appears before him as a ‘friend’ on his social networking page this ‘reasonably conveys to others the impression that these lawyer ‘friends’ are in a special position to influence the judge.’
The pertinent language from the JEAC opinion draws a brightline:
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.
A judge must avoid all impropriety and appearance of impropriety. A judge must expect to be the subject of constant public scrutiny. A judge must therefore accept restrictions on the judge’s conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.
The JEAC’s reasoning is understandable—perceived impropriety or bias is a problem, and to curb it, social network friendships between lawyers and judges that give even an inkling of inappropriateness will be prohibited. But it is questionable whether this brightline rule truly gets to the meat of the matter.
That is to say, the JEAC opinion claims a Facebook friendship between judge and lawyer tells the public that lawyer is somehow in a special position to influence the judge. But as most social network aficionados would agree, many relationships formed through social networks do not rise to the levels of intimacy or interactivity of real interpersonal relationships, and one would be hard-pressed to prove that a typical social network relationship has as high an ability to influence a judge as does an interpersonal relationship.
There are certainly exceptions. Take, for example, the North Carolina judge who, in 2009, was issued a public reprimand for numerous Facebook exchanges with a lawyer who was involved with a matter pending before the court. It is axiomatic that a social networking friendship of this level, where judge and lawyer interact publicly, could certainly project impropriety or bias. But it is less clear whether a non-interactive Facebook connection alone rises to that level.
Some courts have granted more latitude to judges when it comes to Facebook relationships. An Illinois woman, convicted in June 2011 of aggravated battery of a child, petitioned for a new trial on the grounds that her trial judge’s children were Facebook friends with members of the victim’s family. Her request was denied:
Will County Judge Richard Schoenstedt heard Becker’s arguments and ruled against Klein on Wednesday. Schoenstedt said Becker presented ‘a series of dots that are unconnected,’ and he said a ruling in Klein’s favor would mean judges all over Illinois would need to scour their own and family members’ Facebook pages before every bench trial.
Interpersonal relationships between attorneys and judges are not presumptively invalid or unethical. Judge meets lawyer at a networking function, and a conversation ensues. Unless that conversation is truly unethical in nature, there is nothing illegal about that exchange. But if that meeting, however tenuous and short-lived it may be, occurs within the sphere of a social network, it is per se prohibited. So, what is it about a social network friendship that makes it so different, and apparently so much more dangerous, than an interpersonal one?
The JEAC opinion offers further insight:
[E]ach of a judge’s ‘friends’ may see on the judge’s page who the judge’s other ‘friends’ are. Similarly, all ‘friends’ of another user may see that the judge is also a ‘friend’ of that user. It is this selection and communication process, the Committee believes, that violates Canon 2B, because the judge, by so doing, conveys or permits others to convey the impression that they are in a special position to influence the judge.
So, it would appear that the most troubling aspect of social networking friendships between judge and lawyer is their publicity. Unless one has customized privacy settings, Facebook displays each user’s “Friends” in a very public nature. A judge’s “friends” would be public fodder, and it would be quite easy to see with which lawyers he or she is “friends,” and, perhaps more concerning, with which he is not. In the networking function hypothetical offered above, only other guests at the event may perceive impropriety of the relationship between the judge and lawyer. Their friendship is not broadcasted publicly. That may very well be the distinction between interpersonal and social networking relationships that persuaded the JEAC and the Fourth DCA to rule how they did.
A strict prohibition on judge and lawyer social network friendships is one way to curb perceived impropriety. Or, a court could also allow judges and lawyers to be social network friends but adopt strict privacy setting requirements to keep their friends lists blocked to everyone. But until then: if a lawyer receives a Friend Request from a judge, she may want to consider clicking the “Deny” button.
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