On Legal Ethics

 

August 3, 2010

December 4, 2012


The art of gracious disagreement

When a modern lawyer sits down at her desk in the morning and turns on her computer, her home page is not necessarily going to be an old school site like Google; in modern times it will probably be Facebook. If some of her Facebook "friends" are judges, the lawyer and her black-robed "friends" may face issues with the appearance of impropriety. Welcome to the practice of law in the new millennium.

Modern modes of communication bring corresponding modern ethical issues. In an age of electronic communication and social networking, lawyers must be aware of their ethical and professional responsibilities and how they apply within the increasingly public realm of electronic communication. This series of articles will discuss the ethical issues relating to electronic communication generally, the mechanics of popular social networking sites such as Facebook, Twitter and LinkedIn, and the ethical issues implicated by the use of such services both personally and professionally.

'Friendship' and the appearance of impropriety

You know you have moved into the new millennium when you have suffered the indignity of being "unfriended." While you might argue cyberspace "friends" are much more like acquaintances than live friends, ethical guidelines may not make such a distinction.

Who can you be "friends" with on social networking sites? In some jurisdictions, the answer may be: not a judge! 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 the 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 party's 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 judges' 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 judge's 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])

Are there other activities that a judge should refrain from on social networking sites? A Georgia superior court judge who just stepped down could answer that question for you. The Georgia judge apparently developed a personal relationship on Facebook with a woman who was a defendant in a case that was pending in his courtroom (Katheryn Hays Tucker, "Ga. Judge Steps Down Following Questions About Facebook Relationship With Defendant," Law.com (January 7, 2010); available from law.com/jsp/law/LawARticleFriendly.jsp?id=1202437652986). The relationship began when the judge contacted the woman asking about a haircut because he saw that she worked for a hair salon, and progressed over time to the judge advising the woman on strategy and negotiation in her own case, even stating "I can help you more behind the scenes so long as very few people know it" (Id.). The relationship then progressed to in-person contact (Id.). While the judge was not prosecuted criminally, his conduct appeared to violate the Georgia Code of Judicial Conduct, which states among other things that judges shall maintain high standards of conduct, and avoid both impropriety and the appearance of impropriety "in all their activities" (Id.).

What about "fan" clubs? Fans listed on a judge's campaign site have been viewed as generally acceptable as long as the candidate was not able to "accept" anyone seeking to be added to the page (Ken Strutin, "Social Networking Pitfalls for Judges, Attorneys," (March 17, 2010); law.com/jsp/lawtechnologynews).

Conclusion

Social networking sites are a great way to keep in touch with family and friends. When such sites are used in the practice of law to communicate with our friends on the bench, a working knowledge of the legal and ethical rules that may apply in this area is critical. An awareness of the issues that may arise in the on line arena will permit intelligent use of social networking sites to communicate effectively, as well as ethically. Good luck!


Patrick Mazzarella 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. Ms. Patrick is one of 16 members of the California State Bar Committee on Professional Responsibility and Conduct (COPRAC) She can be contacted at wendy.patrick@sddt.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.


 

August 3, 2010

December 4, 2012


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