Tuesday, December 8, 2009

No "Friends" For Judges

The Florida Judicial Ethics Advisory Committee opines on ethical issues relating to judges' use of on line social networking sites. A summary of the opinion from the committee:

Whether a judge may post comments and other material on the judge's page on a social networking site, if the publication of such material does not otherwise violate the Code of Judicial Conduct.

ANSWER: Yes.

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."

ANSWER: No.

Whether a committee of responsible persons, which is conducting an election campaign on behalf of a judge's candidacy, may post material on the committee's page on a social networking site, if the publication of the material does not otherwise violate the Code of Judicial Conduct.

ANSWER: Yes.

Whether a committee of responsible persons, which is conducting an election campaign on behalf of a judge's candidacy, may establish a social networking page which has an option for persons, including lawyers who may appear before the judge, to list themselves as "fans" or supporters of the judge's candidacy, so long as the judge or committee does not control who is permitted to list himself or herself as a supporter.

ANSWER: Yes.

As to the "friend" issue:

The Committee believes that listing lawyers who may appear before the judge as “friends” on a judge's social networking page reasonably conveys to others the impression that these lawyer “friends” are in a special position to influence the judge.  This is not to say, of course, that simply because a lawyer is listed as a “friend” on a social networking site or because a lawyer is a friend of the judge, as the term friend is used in its traditional sense, means that this lawyer is, in fact, in 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.  The Committee concludes that such identification in a public forum of a lawyer who may appear before the judge does convey this impression and therefore is not permitted.

The Committee notes, in coming to this conclusion, that social networking sites are broadly available for viewing on the internet.   Thus, it is clear that many persons viewing the site will not be judges and will not be familiar with the Code, its recusal provisions, and other requirements which seek to assure the judge's impartiality.  However, the test for Canon 2B is not whether the judge intends to convey the impression that another person is in a position to influence the judge, but rather whether the message conveyed to others, as viewed by the recipient, conveys the impression that someone is in a special position to influence the judge.  Viewed in this way, the Committee concludes that identifying lawyers who may appear before a judge as "friends" on a social networking site, if that relationship is disclosed to anyone other than the judge by virtue of the information being available for viewing on the internet, violates Canon 2(B).

The inquiring judge has asked about the possibility of identifying lawyers who may appear before the judge as “friends” on the social networking site and has not asked about the identification of others who do not fall into that category as “friends”.  This opinion should not be interpreted to mean that the inquiring judge is prohibited from identifying any person as a "friend" on a social networking site.  Instead, it is limited to the facts presented by the inquiring judge, related to lawyers who may appear before the judge.  Therefore, this opinion does not apply to the practice of listing as “friends” persons other than lawyers, or to listing as “friends” lawyers who do not appear before the judge, either because they do not practice in the judge's area or court or because the judge has listed them on the judge’s recusal list so that their cases are not assigned to the judge.

A minority of the committee would answer all the inquiring judge’s questions in the affirmative.  The minority believes that the listing of lawyers who may appear before the judge as "friends" on a judge's social networking page does not reasonably convey to others the impression that these lawyers are in a special position to influence the judge.  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 2B. 

(Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2009/12/the-florida-judicial-ethics-advisory-commission-opines-on-judges-use-of-on-line-social-networking-a-summary-of-the-opinion.html

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Comments

No more "friend of the court" filings?

Posted by: Amicus Curiae | Dec 10, 2009 6:41:57 AM

I really think that Facebook "friends" are more like contacts, and that the minority's view of this is the common sense, correct one. Using FB allows one to communicate with others, and it's widely used, and you can't speak use the features on the site without treating "friending" the person. I hope this position doesn't catch on.

Posted by: A. Nonimus | Dec 10, 2009 9:26:09 AM

For what it's worth, it appears the the committee misunderstood the technology. They try to draw an exemption for campaign fan pages "so long as the judge or committee does not control who is permitted to list himself or herself as a supporter."

But, as I explained in a blog post about this ruling (and every casual user of social media probably knows), the major social media services give page owners control over who can be a fan or a follower, as well as a friend.

http://www.scotxblog.com/legal-tech/judges-friending-lawyers-on-social-media-and-facebook/

Posted by: Don Cruse | Jan 16, 2010 12:09:25 PM

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