Archive for the tpoic: ‘Opinion NY 08-176’

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.

Online Networking For Judges Is Not On The Rocks: New York Permits Judges To "Friend" Lawyers

Wednesday, December 23rd, 2009

sea lion networkUnlike their Florida counterparts, New York State judges are free to participate in online social networking with no greater restriction than is already placed upon them by virtue of their office. A January 29, 2009 opinion issued by the State of New York’s Advisory Committee on Judicial Ethics states:

Provided that the judge otherwise complies with the Rules Governing Judicial Conduct, he/she may join and make use of an Internet-based social network. A judge choosing to do so should exercise an appropriate degree of discretion in how he/she uses the social network and should stay abreast of the features of any such service he/she uses as new developments may impact his/her duties under the Rules. (Opinion 08-176)

The opinion identifies “the question [as] not whether a judge can use a social network but, rather, how he/she does so.” The guidelines for New York judges using social networking advises judges to:

  1. Recognize the public nature of anything he/she places on a social network page and tailor any postings accordingly. (E.g., in previous opinions, links to advocacy groups are not permitted but links to news articles are permitted.)
  2. Consider whether any such online connections, alone or in combination with other facts, rise to the level of a “close social relationship” requiring disclosure and/or recusal.
  3. Avoid engaging in communication with those who informally ask questions about or seek to discuss their cases, or seek legal advice.
In summarizing the guidelines, the opinion states that the guidance given by the opinion:

. . . can only be, a non-exhaustive list of issues that judges using social networks should consider. The Committee urges all judges using social networks
to, as a baseline, employ an appropriate level of prudence, discretion and decorum in how they make use of this technology, above and beyond what is specifically described above.

In short, the opinion acknowledges the judge’s ability to discern situations
to avoid and to abide by the canons and rules that already exist.

New York State Code of Judicial Conduct

The New York opinion identifies Canons 2(B) and (C) and Canon 4(A) as applying to the topic of online social networking. In particular:

A judge shall not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment. (NY Canon 2B)

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. (NY Cannon 2C)

A judge shall conduct all of the judge’s extrajudicial activities so that they do not:
(1) cast reasonable doubt on the judge’s capacity to act impartially as a judge;
(2) detract from the dignity of judicial office; or
(3) interfere with the proper performance of judicial duties and are not incompatible with judicial office. (NY Cannon 4A)

The New York Opinion recognizes the risks and advantages of participating in social networking and allows judges the freedom to participate if they so choose.

New York’s Opinion Is The Polar Opposite Of Florida’s Opinion

New York’s approach to regulating the behavior of judges stands in stark contrast with the recent opinion issued by the Florida Judicial Ethics Advisory Committee (Opinion 2009-20), which essentially prohibits judges from “friending” attorneys on the basis that it may possibly convey “a special position to influence the judge.” (See Online Social Networking For Judges: Florida Prohibits Judges To “Friend” Lawyers.) While the canons of each state are similarly worded, the interpretation by each state has produced opposite results.

The Strength Of The Opinion

The strength of the New York Opinion is clear: the responsibility for discerning the appropriate use of online social networking media rests squarely on the shoulders of the judges who use it.

The Committee cannot discern anything inherently inappropriate about a judge joining and making use of a social network. A judge generally may socialize in person with attorneys who appear in the judge’s court, subject to the Rules Governing Judicial Conduct.

The judges of New York are expected to act in a mature manner that is consistent with the rules and opinions that govern their position, regardless of the forum.

Conclusion

The New York Opinion protects online social networking between judges and the lawyers that may appear before them. Its strength is that it provides a broad set of guidelines that are to be applied through the wisdom of the judges.

This post is Part 2 in a sereis discussing Online Social Networking For Judges. In the next blog, I will review the South Carolina Opinion in this topic, which somewhat extends the New York position.