Archive for the tpoic: ‘Opinion FL 2009-20’

Texas Judges Still Have Online Lawyer "Friends" — But For How Long?

Friday, January 8th, 2010

Blue McCaws photo by Bruce A Campbell Unlike Florida, New York, and South Carolina, Texas does not appear to have an opinion addressing the question of whether Texas Judges can participate in online social networking.

Texas judges are currently allowed to choose who they will “friend” in social networking media. Judge Susan Criss of Galveston’s 212th District Court says she follows her ethical canons and is careful about what she says and who she friends. She “friends” all lawyers in order to avoid an appearance that she favors one side over another. (Judge Criss was a panelist in the ABA program, “Courts and Media in the 21st Century,” presented on July 31, 2009.)

The Ethical Canons that Criss referred to are Canon 2B and Canon 4A:

Texas Canon 2B: A judge shall not allow any relationship to influence judicial conduct or judgment. 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. A judge shall not testify voluntarily as a character witness.

Texas Canon 4A: Extra-judicial duties in general.
A judge shall conduct all of the judge’s extra-judicial activities so that they do not:
(1) cast reasonable doubt on the judge’s capacity to act impartially as a judge; or
(2) interfere with the proper performance of judicial duties.

While the Canons do not, on their face, prohibit Texas judges from social networking, some, like Judge Orlinda Naranjo of Travis County’s 419th District Court, have chosen not to participate. (“Social Networks Help Judges Do Their Duty,” Miriam Rozen. Law Technology News, August 25, 2009.)

Comparison Between The Model Rules And The States’ Rules

Chart of Judical Canons
(Click on image to open larger chart in new window.)

Even though the canons are essentially the same, the opinions range from prohibiting judges from “friending” lawyers (See Online Social Networking For Judges: Florida Prohibits Judges To “Friend” Lawyers), to allowing judges to “friend” lawyers (New York Permits Judges To “Friend” Lawyers), to encouraging judges to “friend” people in the community (South Carolina Permits Judges To Participate in Social Networks).

Many Texas judges enjoy a collegiate relationship with lawyers. For example, the Galveston County Young Lawyers host a judicial reception as:

an informal atmosphere outside the courtroom where young lawyers could network with the area judges…. Attendance by the judiciary is always strong and truly affords the attorneys a chance to mingle with the judges in front of whom they practice.

It is important to note that the lawyers socialize with the judges “in front of whom they practice.” It is this type of relationship that formed the basis for prohibiting online social networking for Florida judges.

South Carolina Permits Judges To Participate in Social Networks

Thursday, December 31st, 2009

View Bruce A Campbell's photos on Flickr
Kittiwakes “networking” in Whittier, Alaska. © Bruce A. Campbell
South Carolina judges are free to participate in online social networking. In response to the question about whether a judge can “friend” law enforcement officers and employees of the court, the South Carolina Advisory Committee on Standards of Judicial Conduct issued the following conclusion in October 2009:

A judge may be a member of Facebook and be friends with law enforcement officers and employees of the Magistrate as long as they do not discuss anything related to the judge’s position as magistrate. (Opinion 17-2009)

The opinion states:

A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. Canon 2(A), Rule 501, SCACR.

The opinion references Canon 2(A), Rule 501, SCACR in support. Both Rule 501 (Code of Judicial Conduct) and SCACR (South Carolina Appellate Court Rules) outline appropriate and inappropriate behaviors, which are summarized by Canon 2(A),

A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

South Carolina Opinion Differs
From The Florida And New York Opinions

While the relevant Canons of South Carolina do not differ significantly from the Canons of Florida or New York, each state has interpreted them differently. Florida prohibits judges from “friending” lawyers who may appear before them (See Online Social Networking For Judges: Florida Prohibits Judges To “Friend” Lawyers), New York permits judges to “friend” anyone as long as it does not compromise the integrity of the judiciary (New York Permits Judges To “Friend” Lawyers), and South Carolina comes close to encouraging judges to participate in online social networking.

The commentary to Canon 4 states that complete separation of a judge from extra-judicial activities is neither possible nor wise; a judge should not become isolated from the community in which the judge lives. Allowing a Magistrate to be a member of a social networking site allows the community to see how the judge communicates and gives the community a better understanding of the judge. Thus, a judge may be a member of a social networking site such as Facebook.

Problems Of The Opinion

There are two problems with the opinion that are relevant to our discussion of judges “friending” lawyers.

  1. The opinion does not specifically address the issue if online social networking between judges and lawyers. On the one hand, the conclusion limits the opinion to approving networking between judges and “law enforcement officers and employees of the Magistrate.” On the other hand, the use of “community” in the discussion of the opinion suggests that it applies to a much broader context.

Allowing a Magistrate to be a member of a social networking site allows the community to see how the judge communicates and gives the community a better understanding of the judge.

 

  • Like the New York Opinion, the South Carolina opinion focuses on principle rather that concrete examples. Therefore, the decision about what constitutes questionable activities will have to be made on a case by case basis.
  • The Strength Of The Opinion

    There strength of the opinion lies in its brevity. The single condition for participating in online social networking is “do not discuss anything related to the judge’s position as magistrate.”

    Conclusion

    The South Carolina Opinion allows online social networking between judges, law enforcement, and employees of the Magistrate. Its weaknesses include 1) a narrow focus (judges, law enforcement, and Magistrate employees) with possible extrapolation to the larger community and 2) the lack of concrete examples. Its strength is its single qualification “do not discuss anything related to the judge’s position as magistrate.”

    This is Part 3 in a series about “Online Social Networking For Judges.” In the next blog, I will consider how Texas might be influenced by these opinions.

    Online Social Networking For Judges: A Clear No For Florida Judges

    Friday, December 18th, 2009

    If Facebook were a country, it would be the fourth most populous country in the world. Considering that Facebook did not exist 10 years ago, that is explosive growth. With that kind of growth, the question of whether lawyers and judges would join online social networking groups was not a question of whether but of when and what rules apply. In this series, we are going to look at some of the responses to judicial online social networking. There are two polar opposite approaches to the situation.

    Photo of Ape by Bruce A CampbellThe “NO!” Pole

    The recent opinion of the Florida Judicial Ethics Advisory Committee (Opinion 2009-20) is a clear “NO!” to the question of:

    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.”

    The reason for disallowing judges to “friend” lawyers is that it may possibly convey “a special position to influence the judge.”

    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.

    In support of the decision, the Committee cited the Code of Judicial Conduct.

    A judge shall not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment. 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. A judge shall not testify
    voluntarily as a character witness. (Florida Canon 2B)

    A judge shall conduct all of the judge’s extra-judicial activities so that they do not:
    (1) cast reasonable doubt on the judge’s capacity to act impartially as a judge;
    (2) undermine the judge’s independence, integrity, or impartiality;
    (3) demean the judicial office;
    (4) interfere with the proper performance of judicial duties;
    (5) lead to frequent disqualification of the judge; or(6) appear to a reasonable person to be coercive. (Florida Canon 5A)

    While the Committee acknowledged “[c]omplete separation of a judge from extra-judicial activities is neither possible nor wise; a judge should not become isolated from the community in which the judge lives” (Comment 5a), it reasoned that a judge must “accept restrictions on the judge’s conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly” (Canon 2A).

    The Minority Opinion

    The minority opinion is noteworthy because it recognizes that the social networking term “friend” does not indicate a position of influence.

    The minority concludes that social networking sites have become so ubiquitous that the term “friend” on these pages does not convey the same meaning that it did in the pre-internet age; that today, the term “friend” on social networking sites merely conveys the message that a person so identified is a contact or acquaintance; and that such an identification does not convey that a person is a “friend” in the traditional sense, i.e., a person attached to another person by feelings of affection or personal regard. In this sense, the minority concludes that identification of a lawyer who may appear before a judge as a “friend” on a social networking site does not convey the impression that the person is in a position to influence the judge and does not violate Canon 2.

    Problems with the Opinion

    There are at least three problems with the Florida Opinion:

    1. The opinion fails to recognize that participants in online social networking understand that, in context, “friend” means “contact” or “acquaintance” rather than a relationship of obligation. The Facebook term “friend” and the LinkedIn term “contact” do not convey “the impression that the lawyer is in a position to influence the judge.”
    2. The opinion specifically prohibits judges from networking with lawyers “who may appear before the judge.” Since it would be a maintenance nightmare to “unfriend” lawyers when they are on a judge’s docket and it is impossible to predict every lawyer that might appear before a particular judge, it seems likely that judges will decline to “friend” all lawyers in order to avoid violating the opinion. The opinion could easily be extended to apply to litigants, their employees, relatives, friends, etc. The safest course for a Florida judge will be to say no to any online social networking.
    3. The opinion isolates judges from their peers. Judges were lawyers who enjoyed collegiate relationships with other lawyers. However, once elected to the bench, they can no longer enjoy the network of lawyers who probably helped the judge to be elected.

    Strength of the Opinion

    The strength of the opinion is that it provides a relatively clear demarcation between appropriate and inappropriate behavior. Simply put, if a judge is “friends” with a lawyer that appears in his/her court, the judge is in violation of the opinion.

    Conclusion

    The Florida Opinion prohibits online social networking between judges and the lawyers that may appear before the judge. Its strength is that it provides a measurable standard of conformity. Its weaknesses are the failure to adopt the common understanding of friend, the result that all online relationships between Florida judges and lawyers are likely to be eliminated, and that it isolates judges from the peers.

    In the next blog, I will review the New York Opinion in this topic, which takes a position at the opposite pole from the Florida Opinion.