An increasing number of lawyers and judges have ventured into the cyberspace world of online social networking. California has joined a handful of other states who have already publically opined on this issue by releasing California Judicial Ethics Committee Opinion 66, the first California opinion to discuss the issue of judgesí involvement in the online social networking community.
Recognizing the realities of modern online communication, the opinion states that a judge may indeed participate in an online social networking community, and his or her online social network may include lawyers who may appear before him or her. The opinion states, however, that a judgeís online social network may not include lawyers who have cases pending before the judge.
The opinion notes the potential for the appearance of impropriety as a critical issue, recognizing that modern litigation often involves cyberspace savvy litigators investigating their opposition as well as the court online.
Facebook is presented as an example of an online social network where oneís online “friends” are easily discovered. The opinion presents several factors to examine in determining when online interactions between judges and lawyers might create the appearance of impropriety.
These are listed as:
1) the nature of the social networking site (the more personal the site the greater the potential for the appearance of impropriety);
2) how many “friends” the judge has on his or her page (the more friends the less likelihood of the appearance of impropriety);
3) the judgeís practice in deciding who to include in his or her online social network (the more inclusive the judge’s site the less likely the appearance of impropriety); and
4) how regularly the specific attorney appears before the judge.
Regarding disclosure, the opinion states that when a judge is online “friends” with an attorney, disclosure is required in every case. This arises from the unique nature of online social networks where the connection is obvious, but the nature of the connection may not be readily discernible. The opinion makes clear that a judge may not include a lawyer in his or her social networking site if the lawyer has a case pending before the judge. If this scenario arises, the judge is required to disclose the online connection and “unfriend” the attorney.
The opinion explains that an ongoing connection via an online social network in such a circumstance would create the impression that the attorney holds a special position of influence due to the easy communicative access provided on the social networking site.
Other jurisdictions have already weighed in on the issue of lawyers and judges interacting on social networking sites. The Florida Supreme Court in November 2009 Judicial Ethics Advisory Committee opinion number 2009-20 stated that while a judge may post comments and other material on his or her social networking site page as long as they did not violate the Code of Judicial Conduct, a judge may not add lawyers who may appear before him or her as “friends” on such sites, nor can they permit lawyers to add the judge as a “friend.”
The committee explained that when a judge lists lawyers that may appear before the judge as social networking “friends,” that display may convey the impression that these lawyers “are in a special position to influence the judge.” The rationale is about the appearance of impropriety in a public forum rather than concerns over actual influence. The committee pointed out that judges are permitted to list other people as “friends,” including lawyers that do not practice in front of the judge.
A North Carolina judge was reprimanded for “friending” a lawyer in a pending case, accessing the opposing partyís website, and reading messages relating to the litigation (Debra Cassens Weiss, "Judge Reprimanded for Friending Lawyer and Googling Litigant" (June 1, 2009) ABA Journal).
Regarding judgesí use of social networking sites in general, the New York Advisory Committee on Judicial Ethics op. 08-176 (2009) concluded that as long as a judge complies with the applicable Rules Governing Judicial Conduct, he or she can participate on an Internet-based social network, assuming an acceptable level of competence with the network features. Some judges will agree to be “friends” with all lawyers, in order to avoid the appearance that the judge favors one side over the other (Molly McDonough, “Facebooking Judge Catches Lawyer in Lie, Sees Ethical Breaches,” (July 31, 2009); abajournal.com/news/article).
In South Carolina in opinion No. 17-2009, the South Carolina Advisory Committee on Standards of Judicial Conduct opined that a magistrate judge could be Facebook “friends” with court staff and law enforcement personnel as long as they did not discuss anything related to the judgeís position as magistrate (Ken Strutin, “Social Networking Pitfalls for Judges, Attorneys,” (March 17, 2010); law.com/jsp/lawtechnologynews). This opinion even pointed out the public education value of a social networking profile (Id.).
It may be improper, however, for a judge to view the website of a party appearing before him or her (North Carolina Judicial Standards Commission Inquiry No. 08-234 (2009) [judge also engaged in ex parte communications with counsel])
Join us next month as we continue to examine the ethical issues implicated by online social networking.
Patrick is a deputy district attorney in the Sex Crimes and Stalking Division of the San Diego District Attorney's office and has been a chair of the San Diego County Bar Association Ethics Committee. Patrick is one of 16 members of the California State Bar Committee on Professional Responsibility and Conduct. She can be contacted at email@example.com. The information in this column is intended to be informational only and does not constitute legal advice. Please shepardize all case law before using.