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

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.

One Response to “Online Social Networking For Judges: A Clear No For Florida Judges”

  1. Cary Sias says:

    Did you hear that Dade County , Florida has decided interference with free speech by pulling ads about Islam. This is outrageous and a huge waste of tax payer money will be pent paying legal costs to defend this practice.

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