My 'Friend,' the Judge

“Social media” is a term used for the growing number of Internet websites and mobile technologies that allow people to engage in interactive dialogue. A popular business website, ebi zmba.com, published in January 2012 its list of The 15 Most Popular Social Media Websites. The top five were Facebook, Twitter, LinkedIn, MySpace and GooglePlus. The website estimated that 750 million people visit Facebook every month, more than three times those who visit Twitter. For simplicity, this article will limit this discussion of social media websites to Facebook, a site composed of millions of “friends.”

Outside of social media, a “friend” generally can be merely an acquaintance. It could be a patron, as in “friend of the opera.” In the South there is a popular bumper sticker that proclaims that “Johnny Cash is a friend of mine,” which, of course, in most cases probably indicates a unilateral friendship. A popular Christian hymn, “What a Friend We Have in Jesus,” suggests a deep, spiritual relationship that is, of course, not Web-based. Many would agree that a friend could be a comrade, chum or confidant. In military terms, one is either a “friend or foe.” So, if one is not the enemy, he or she is a friend.

Perhaps, most people would agree that the definition of “friend” from the World English Dictionary is acceptable: “a person known well to another and regarded with liking, affection, and loyalty; an intimate.”

Before the advent of social media, the term “social interest” as used in the Model Code certainly included friendships between attorneys and judges. The latter ' as well as practicing attorneys ' have social lives outside of their professions. They belong to religious denominations that have Sunday school classes or other small meeting groups within a church, synagogue or mosque. Judges are permitted to join appropriate civic clubs, country clubs and other social organizations. They belong to college alumni associations. In these various groups, there is often close contact, especially in religious groups in small towns across American. Close friendships form and flourish between judges and practicing attorneys, including those that appear before a lawyer becomes a judge.

Meanwhile, Facebook users make contacts by forming Facebook friendships. Anyone who joins Facebook can become a “friend” of any one of literally millions of Facebook users who make their profiles visible. All one has to do is send a friend request to a someone who then has the option of completing the formation of the “friendship” or declining to do so.

'Friends' in the Legal Community

Once an attorney and a judge become Facebook “friends,” there are many and varied opportunities for interaction on the site. A Facebook “friend” can interact with another “friend” by posting messages on the other's “wall”; by “tagging” the friend with photographs of anything; or by wishing the other a “happy birthday.” Those actions are typically public. Privately, “friends” can interact by carrying on a conversation in a chat box or by sending private messages. All of this activity may be perfectly innocent if the attorney does not use Facebook to gain favor and the judge does not allow this form of “social interest” to influence his or her judgment.

Only a few states have addressed the issue of Facebook “friendships” between judges and lawyers. In 2009 and 2010, Florida's Judicial Ethics Advisory Committee (“JEAC”) considered the propriety of a judge's befriending lawyers on social networking sites, who may appear before the judge. In its 2009 opinion (Op. 2009-20) the JEAC concluded that a judge may not add a lawyer as “friend” on a social networking site if the lawyer appears before the judge. The JEAC advised that a judge's befriending a lawyer online “reasonably conveys to others the impression that these lawyer 'friends' are in a special position to influence the judge.”

Later, in Op. 2010-06, the JEAC advised “No” to the question of whether an attorney could befriend a judge if the judge simply conveyed to all attorney “friends” or posts a disclaimer on his or her Facebook profile page that the term “friend” should be construed to mean that the person is merely an acquaintance, and “not a 'friend' in the traditional sense.” In the same advisory, the JEAC declined to approve whether a judge could befriend attorneys who appear before the judge “if the judge accepts as 'friends' all attorneys who request to be included or all persons whose names the judge recognizes, and others whose names the judge does not recognize but who share a number of common friends.”

On Dec. 28, 2011, the Massachusetts Committee on Judicial Ethics, in CJE Opinion No. 2011-6, addressed the request that the Committee “define the parameters of Code-appropriate judicial use of Facebook' .” The Committee found that the Code of Judicial Conduct did not bar judges from simply joining a social networking site. The Committee reasoned that judges are free to post on their “walls” things such as photographs, videos, comments and links to articles, so long as all such postings are consistent with the Code.

However, the Massachusetts Committee took a different view of judges who are Facebook friends with lawyers who may appear before them. “Stated another way, in terms of a bright-line test, judges may only 'friend' attorneys as to whom they would recuse themselves when those attorneys appeared before them.” Massachusetts agreed with the Florida JEAC that befriending attorneys on Facebook who appear before them gives the impression that these attorneys “are in a special position to influence the judge.” The Massachusetts Committee opined that the “pervasiveness of social media in today's society” makes the Facebook situation one that requires judges to “accept restrictions on the judge's conduct that might be viewed as burdensome by the ordinary citizen.”

The Supreme Court of Ohio Board of Commissioners on Grievances and Discipline takes the opposite view. On Dec. 3, 2010, the Board issued Opinion 2010-7, which addressed this specific question: “May a judge be a 'friend' on a social networking site with a lawyer who appears as counsel before the judge?” Yes, said the Ohio board. A judge's befriending a lawyer does not in and of itself violate the Ohio Code of Judicial Conduct.

The Ohio Board reasoned that, as with any other action taken by a judge, his or her participation on Facebook must be done carefully and in compliance the rules of the Ohio Code. A judge should recuse himself or herself “from a proceeding when the judge's social networking relationship with a lawyer creates bias or prejudice concerning the lawyer for a party.” The Board took the pragmatic approach that “not all social relationships, online or otherwise, require a judge's disqualification.”

In Kentucky, the Ethics Committee of the Kentucky Judiciary also landed on the permissive side. The Kentucky committee was asked: “May a Kentucky judge or justice, consistent with the Code of Judicial Conduct, participate in an Internet-based social networking site, such as Facebook ' and be 'friends' with various persons who appear before the judge in court, such as attorneys ' ?” Answering in the affirmative, the Kentucky Committee reasoned that the mere fact that lawyers are called friends with a judge on Facebook does not, alone, “reasonably convey to others an impression that such persons are in a special position to influence the judge.” However, the Kentucky “opinion should not be construed as a statement that judges may participate in social networking sites in the same manner as members of the general public.”

It is interesting that committees in Florida and Massachusetts rendered opinions on this issue that are polar opposite to those handed down by committees in Ohio and Kentucky. So, simply put, social media “friendships” between judges and the lawyers that appear before them suggest questionable relationships in Florida and Massachusetts; however, in Ohio and Kentucky, these relationships suggest nothing more ominous than other social relationships between judges and lawyers.

Other Social Networks

But, that begs some questions: If judges are not permitted to be “friends” with attorneys on Facebook, should they also not be allowed to be in civic clubs with attorneys that practice before them? Moreover, may judges belong to religious classes with such lawyers? Certainly a relationship in a religious organization is, on its face, deemed to be more of an intimate friendship than one formed on Facebook.

In addition, an online friendship is at least known to the public, while closer personal friendships between lawyers, and judges are for the most part not known publically. For example, it is (or can be) public knowledge that a certain judge and lawyer are Facebook “friends.” Therefore, the lawyer who is not the “friend” may address that issue with the court early in the proceedings. On the other hand, a lawyer may never learn that a judge and opposing counsel belong to the same church, since this is not prohibited by judicial canons and is not necessarily public knowledge. It follows, then, that the Facebook “friendship” would not pose the same concerns that the church relationship would.

The Kentucky Committee got it right when opining that the designation of a “friend” on Facebook, “does not, in and of itself, indicate the intensity of a judge's relationship with the person who is the 'friend'.” All judges were once practicing lawyers, and in that capacity, formed friendships with other lawyers. Those friendships do not necessarily fade once a lawyer takes the bench. No matter how lawyers and judges become friends, judges must always apply the same rule: A judge shall not permit family, social, political, financial, or other interests or relationships to influence the judges' judicial conduct or judgment.” (Emphasis added.) Facebook friendships between judges and lawyers should not be scrutinized any closer than church, club or other friendships. In the long run, it depends on the character of the judge to know when he or she is being influenced by friendships and to take the appropriate action.

William R. Wright is a member of this newsletter's Board of Editors. He is a Diplomate in the American College of Family Trial Lawyers and a Fellow in the American Academy of Matrimonial Lawyers and in the International Academy of Matrimonial Lawyers.

Social media has revolutionized the way people around the world communicate. Judges are certainly not excluded from this phenomenon. While our communication modes evolve, Rule 2.4(B) of the American Bar Association's Model Code of Judicial Conduct (2007) (“Model Code”) still rightly states: “A judge shall not permit family, social, political, financial, or other interests or relationships to influence the judge's judicial conduct or judgment.” (Emphasis added.)

Does this rule address relationships formed on social media? More specifically, is it permissible for a judge to become friends on a social media site with lawyers who appear before the judge? The comments to the rule do not address the issue, and there is disagreement among ethics committees in the various states with respect to this specific question.

Social Media Defined

“Social media” is a term used for the growing number of Internet websites and mobile technologies that allow people to engage in interactive dialogue. A popular business website, ebi zmba.com, published in January 2012 its list of The 15 Most Popular Social Media Websites. The top five were Facebook, Twitter, LinkedIn, MySpace and GooglePlus. The website estimated that 750 million people visit Facebook every month, more than three times those who visit Twitter. For simplicity, this article will limit this discussion of social media websites to Facebook, a site composed of millions of “friends.”

Outside of social media, a “friend” generally can be merely an acquaintance. It could be a patron, as in “friend of the opera.” In the South there is a popular bumper sticker that proclaims that “Johnny Cash is a friend of mine,” which, of course, in most cases probably indicates a unilateral friendship. A popular Christian hymn, “What a Friend We Have in Jesus,” suggests a deep, spiritual relationship that is, of course, not Web-based. Many would agree that a friend could be a comrade, chum or confidant. In military terms, one is either a “friend or foe.” So, if one is not the enemy, he or she is a friend.

Perhaps, most people would agree that the definition of “friend” from the World English Dictionary is acceptable: “a person known well to another and regarded with liking, affection, and loyalty; an intimate.”

Before the advent of social media, the term “social interest” as used in the Model Code certainly included friendships between attorneys and judges. The latter ' as well as practicing attorneys ' have social lives outside of their professions. They belong to religious denominations that have Sunday school classes or other small meeting groups within a church, synagogue or mosque. Judges are permitted to join appropriate civic clubs, country clubs and other social organizations. They belong to college alumni associations. In these various groups, there is often close contact, especially in religious groups in small towns across American. Close friendships form and flourish between judges and practicing attorneys, including those that appear before a lawyer becomes a judge.

Meanwhile, Facebook users make contacts by forming Facebook friendships. Anyone who joins Facebook can become a “friend” of any one of literally millions of Facebook users who make their profiles visible. All one has to do is send a friend request to a someone who then has the option of completing the formation of the “friendship” or declining to do so.

'Friends' in the Legal Community

Once an attorney and a judge become Facebook “friends,” there are many and varied opportunities for interaction on the site. A Facebook “friend” can interact with another “friend” by posting messages on the other's “wall”; by “tagging” the friend with photographs of anything; or by wishing the other a “happy birthday.” Those actions are typically public. Privately, “friends” can interact by carrying on a conversation in a chat box or by sending private messages. All of this activity may be perfectly innocent if the attorney does not use Facebook to gain favor and the judge does not allow this form of “social interest” to influence his or her judgment.

Only a few states have addressed the issue of Facebook “friendships” between judges and lawyers. In 2009 and 2010, Florida's Judicial Ethics Advisory Committee (“JEAC”) considered the propriety of a judge's befriending lawyers on social networking sites, who may appear before the judge. In its 2009 opinion (Op. 2009-20) the JEAC concluded that a judge may not add a lawyer as “friend” on a social networking site if the lawyer appears before the judge. The JEAC advised that a judge's befriending a lawyer online “reasonably conveys to others the impression that these lawyer 'friends' are in a special position to influence the judge.”

Later, in Op. 2010-06, the JEAC advised “No” to the question of whether an attorney could befriend a judge if the judge simply conveyed to all attorney “friends” or posts a disclaimer on his or her Facebook profile page that the term “friend” should be construed to mean that the person is merely an acquaintance, and “not a 'friend' in the traditional sense.” In the same advisory, the JEAC declined to approve whether a judge could befriend attorneys who appear before the judge “if the judge accepts as 'friends' all attorneys who request to be included or all persons whose names the judge recognizes, and others whose names the judge does not recognize but who share a number of common friends.”

On Dec. 28, 2011, the Massachusetts Committee on Judicial Ethics, in CJE Opinion No. 2011-6, addressed the request that the Committee “define the parameters of Code-appropriate judicial use of Facebook' .” The Committee found that the Code of Judicial Conduct did not bar judges from simply joining a social networking site. The Committee reasoned that judges are free to post on their “walls” things such as photographs, videos, comments and links to articles, so long as all such postings are consistent with the Code.

However, the Massachusetts Committee took a different view of judges who are Facebook friends with lawyers who may appear before them. “Stated another way, in terms of a bright-line test, judges may only 'friend' attorneys as to whom they would recuse themselves when those attorneys appeared before them.” Massachusetts agreed with the Florida JEAC that befriending attorneys on Facebook who appear before them gives the impression that these attorneys “are in a special position to influence the judge.” The Massachusetts Committee opined that the “pervasiveness of social media in today's society” makes the Facebook situation one that requires judges to “accept restrictions on the judge's conduct that might be viewed as burdensome by the ordinary citizen.”

The Supreme Court of Ohio Board of Commissioners on Grievances and Discipline takes the opposite view. On Dec. 3, 2010, the Board issued Opinion 2010-7, which addressed this specific question: “May a judge be a 'friend' on a social networking site with a lawyer who appears as counsel before the judge?” Yes, said the Ohio board. A judge's befriending a lawyer does not in and of itself violate the Ohio Code of Judicial Conduct.

The Ohio Board reasoned that, as with any other action taken by a judge, his or her participation on Facebook must be done carefully and in compliance the rules of the Ohio Code. A judge should recuse himself or herself “from a proceeding when the judge's social networking relationship with a lawyer creates bias or prejudice concerning the lawyer for a party.” The Board took the pragmatic approach that “not all social relationships, online or otherwise, require a judge's disqualification.”

In Kentucky, the Ethics Committee of the Kentucky Judiciary also landed on the permissive side. The Kentucky committee was asked: “May a Kentucky judge or justice, consistent with the Code of Judicial Conduct, participate in an Internet-based social networking site, such as Facebook ' and be 'friends' with various persons who appear before the judge in court, such as attorneys ' ?” Answering in the affirmative, the Kentucky Committee reasoned that the mere fact that lawyers are called friends with a judge on Facebook does not, alone, “reasonably convey to others an impression that such persons are in a special position to influence the judge.” However, the Kentucky “opinion should not be construed as a statement that judges may participate in social networking sites in the same manner as members of the general public.”

It is interesting that committees in Florida and Massachusetts rendered opinions on this issue that are polar opposite to those handed down by committees in Ohio and Kentucky. So, simply put, social media “friendships” between judges and the lawyers that appear before them suggest questionable relationships in Florida and Massachusetts; however, in Ohio and Kentucky, these relationships suggest nothing more ominous than other social relationships between judges and lawyers.

Other Social Networks

But, that begs some questions: If judges are not permitted to be “friends” with attorneys on Facebook, should they also not be allowed to be in civic clubs with attorneys that practice before them? Moreover, may judges belong to religious classes with such lawyers? Certainly a relationship in a religious organization is, on its face, deemed to be more of an intimate friendship than one formed on Facebook.

In addition, an online friendship is at least known to the public, while closer personal friendships between lawyers, and judges are for the most part not known publically. For example, it is (or can be) public knowledge that a certain judge and lawyer are Facebook “friends.” Therefore, the lawyer who is not the “friend” may address that issue with the court early in the proceedings. On the other hand, a lawyer may never learn that a judge and opposing counsel belong to the same church, since this is not prohibited by judicial canons and is not necessarily public knowledge. It follows, then, that the Facebook “friendship” would not pose the same concerns that the church relationship would.

The Kentucky Committee got it right when opining that the designation of a “friend” on Facebook, “does not, in and of itself, indicate the intensity of a judge's relationship with the person who is the 'friend'.” All judges were once practicing lawyers, and in that capacity, formed friendships with other lawyers. Those friendships do not necessarily fade once a lawyer takes the bench. No matter how lawyers and judges become friends, judges must always apply the same rule: A judge shall not permit family, social, political, financial, or other interests or relationships to influence the judges' judicial conduct or judgment.” (Emphasis added.) Facebook friendships between judges and lawyers should not be scrutinized any closer than church, club or other friendships. In the long run, it depends on the character of the judge to know when he or she is being influenced by friendships and to take the appropriate action.

William R. Wright is a member of this newsletter's Board of Editors. He is a Diplomate in the American College of Family Trial Lawyers and a Fellow in the American Academy of Matrimonial Lawyers and in the International Academy of Matrimonial Lawyers.