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Why Florida's Ban on Judges' "Friending" Lawyers on Facebook Is the Right Call |
By ANITA RAMASASTRY |
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| Tuesday, December 15, 2009 |
Many lawyers have Facebook pages and, it turns out, so do many judges. Recently, however, the Florida Judicial Ethics Advisory Committee ("The Committee") decided that, in Florida, judges may not ethically "friend" lawyers on Facebook -- or other social networking sites -- if the lawyers may appear before them.
Judges may use Facebook for political campaigns (since many states require judges to run for election), for communicating with the public, or simply to communicate with friends and acquaintances.
The Committee felt that the "friending" of lawyers by judges could send the wrong message to the public -- suggesting that certain attorneys have cozy relationships with a given judge, and thus have the power to influence his or her decisions.
A person who is on Facebook might have dozens, hundreds, or even thousands of "Facebook friends." Some legal ethics experts thus conclude that being a Facebook "friend" conveys very little, and that the Committee got it wrong.
And indeed, a minority of the Committee's panel would have allowed Facebook friendship between lawyers and judges, because the minority characterized being a Facebook "friend" as a status that is actually more like that of "a contact or acquaintance," one that does not convey the notion of "feelings of affection or personal regard."
But there is a strong basis for the Committee's ruling: Judges hold a very special position of trust. They must take extra pains to avoid even the appearance of impropriety or conflicts of interest. Thus, as I will explain in this column, I believe the Committee got it right.
The Ethics Advisory Opinion: Concern About the Appearance of Special Influence
The Florida ethics opinion is advisory: It does not have the binding force of a judicial ruling from the Florida Supreme Court. However, it is interpretive and persuasive, and it may be a sign of how other judicial ethics bodies in other states – or in the federal system -- might weigh in on this issue.
The opinion begins by discussing what it means for someone to become a "friend" on a social networking website: "The member of the social network must approve a person who requests to be identified as the member's ‘friend.'" Once approved, the opinion explains, the member's new "friend" "may post comments and links to other websites on the member's home site, known as the member's ‘wall.' The member may reply to these postings or delete them, but they will remain on the member's site until deleted. The ‘friend's' comments will be visible to anyone the member permits to view the site. "
The opinion then asks whether judges may identify lawyers on their social-networking-site pages as "friends," and vice-versa. The Committee found two Florida ethics canons to be relevant:
Canon 2B states, "A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge."
Canon 5A states that a judge should conduct his extrajudicial affairs in a way that does not, amoing other things, cast reasonable doubt on the judge's capacity to act impartially as a judge or undermine the judge's independence, integrity, or impartiality.
The Committee noted that other "friends" on a networking site can see a list of a judge's "friends." As a result, it concluded that adding lawyers to this list violates the Canons, for by doing so, the judge "conveys or permits others to convey the impression that the lawyers are in a special position to influence the judge."
The Committee was careful to note that it was not suggesting that a judge's "friending" a lawyer actually indicated improper influence – just that it could appear to suggest such influence. Similarly, the Committee was careful to note that simply being a "friend" of a judge on Facebook or another site does not necessarily mean that an attorney is actually in a special position to influence a judge – but simply that it could convey the appearance of such an improper relationship, especially to members of the public. The Committee's opinion notes that "it is clear that many persons viewing the site will not be judges and will not be familiar with the Code, its recusal provisions, and other requirements which seek to assure the judge's impartiality."
The Committee also noted that "While judges cannot isolate themselves entirely from the real world and cannot be expected to avoid all friendships outside of their judicial responsibilities, some restrictions upon a judge's conduct are inherent in the office." It added that judges must sometimes "accept restrictions on the judge's conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly."
Why the Majority Was Right – At Least At This Point in Time
As I noted above, a minority of the Committee would have reached the opposite conclusion, and allowed judges to "friend" or link to attorneys on their social networking pages. The minority concluded that social networking sites are so prevalent that being identified as someone's friend on a site does not convey any particular message at all – beyond the bare fact that there is some connection (however tenuous) between two people.
I think that the majority got it right – at least for now. One important consideration is that a judge may "friend" some lawyers but not others. If so, these acts of inclusion and exclusion may be read to send messages, however inadvertent. Parties appearing before judges might reasonably decide, for instance, to only hire attorneys who are on the judge's "friend" list, or might urge their lawyers to try to "friend" the judge to see if he or she will accept that lawyer as a "friend."
Consistent with the Florida opinion, judges can still express themselves on Facebook. Moreover, in states that issue ethics opinions like Florida's, judges can still maintain friendships with attorneys – but will have to do so offline. True friendships will surely survive the absence of Facebook contact. In turn, however, such friendships should be grounds for recusal, should the attorney ever be assigned to appear before the judge.
Relatedly, it likely will not raise an ethics issue for the judge if an attorney becomes a "fan" of a given judge through, for instance, Facebook pages for political campaigns. That's because a campaign is not required to accept or reject a "fan" in order for the fan's name to appear on the campaign's Facebook page. Anyone desiring to be listed as a "fan" can do so , without any approval from the judge or the campaign. Thus, with regard to "fan-ing" there is no action by the judge on which to ground an ethics complaint (unless one argues that judicial campaigns should not have "fans" at all).
Finally, and interestingly, this problem isn't unique to judges: More generally, public officials are finding that their Facebook conduct (including their "friending" practices) is being scrutinized. Since Facebook and similar sites are a mixture of public and private, this issue isn't going to go away any time soon. Thus, state ethics bodies – including those that govern judicial ethics -- are well-advised to confront the issue sooner, rather than later.
Ramasastry is currently on leave from the University to work for the federal government. Theviews expressed in this column aresolely those of Ramasastry in her personal capacity anddo not necessarily represent the views of any of her employers, past or present.