Friday, May 18, 2012

Judicial Connections

As usual, the Florida Judicial Ethics Advisory Committee is on the cutting edge of questions about judges and social media.

A recent opinion concludes:

ISSUE

Whether a judge may add lawyers who may appear before the judge as "connections" on the professional networking site, Linked In, or permit such lawyers to add the judge as their "connection" on that site?

ANSWER: No.

FACTS

The Inquiring Judge notes the Committee's Opinion 09-20, which concluded that it was not permissible for a judge to approve a lawyer who may appear before the judge as a "friend" on a social networking site such as Facebook.  The Inquiring Judges asks whether the same restriction would apply to a judge approving such a lawyer as a "connection" on the professional networking site LinkedIn.

The Inquiring Judge submits that a distinction should be drawn between Facebook, where family and other personal relationships are fostered, and LinkedIn which is for the purpose of conducting professional networking.  Therefore, the Inquiring Judge submits that "a judge's connection on LinkedIn with lawyers who may appear before the judge does not reasonably convey the impression to the public that a personal relationship of any kind necessarily exists between them."  The Inquiring Judge states that the Committee in Opinion 09-20 "determined that judges cannot include lawyers as friends on certain social network sites because the term 'friends' conveys the traditional meaning of close affection.

Reasoning:

On LinkedIn, under the default settings, a person's profile lists only the number of connections (and not their names) to persons who have not been accepted as "connections."  If a visitor to the site is thereafter accepted by the member as a "connection," that visitor can thereafter view the names (and professional information) of the member's connections.

The Committee has reviewed with particular interest California Opinion Number 66, which concludes that it is permissible for a judge to accept a lawyer as a Facebook "friend" or LinkedIn "contact" if that lawyer may appear before the judge.  The California committee goes on to opine however that a judge may not approve the lawyer, or have a lawyer as a friend or contact, if the lawyer has a case pending before the judge.

This approach would require each judge who had accepted a lawyer as a friend or connection to constantly scan the cases assigned to the judge, and the lawyers appearing in each case, and "defriend" or delist each lawyer upon a friend or connection making an appearance in a case assigned to the judge.

By contrast, we noted in Opinion 09-20 that "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."

That approach, with the judge making a determination on whether or not a lawyer may appear before the judge, based on the characteristics of the lawyer's practice and the jurisdiction of the judge's court, appears more feasible than one that contemplates a judge constantly approving, deleting, and reapproving lawyers as "friends" or "connections" as their cases are assigned to, and thereafter concluded or removed from, a judge.

For the reasons stated in Opinion 10-06, one member continues to dissent.

(Mike Frisch)

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