Wednesday, March 31, 2010

"Friending" And Florida Ethics

The Florida Judicial Ethics Advisory Committee has now weighed in on a series of questions concerning "friending. " Judicial assistants may friend so long as they do so in conformance with this opinion:

Several opinions clearly hold that judicial assistants are not subject to the Code of JudicialaConduct. See JEAC Op. 95-12 (where a majority of the Committee believed that the Code of Judicial Conduct did not apply to judicial assistants for seeking donations and fund-raising activities outside the courthouse and outside their administrative duties); Op. 93-45 (law clerks not bound by Code of Judicial Conduct when engaged in partisan political activity during their personal time).

While the Code may not apply directly to judicial assistants, it may indirectly impact them and their duties.   In JEAC Op. 00-08, the Committee recommended that the judge direct its court employees, including judicial assistants, to not accept gifts.  The Committee explained that “the acceptance of such gifts places the fidelity and the integrity of the court into serious question.” JEAC Op. 00-08; see also Canon 3C(2), Fla. Code of Jud. Conduct.  Furthermore, in Op. 06-32, the Committee opined that a judicial assistant should not accept employment cleaning offices of attorneys who have appeared or were likely to appear before the judge.  That conduct, coupled with the monetary implications, “gives an appearance of impropriety and has an adverse impact on the public perception of the integrity of the court system.” JEAC Op. 06-32; see also Canon 2B, Fla. Code of Jud. Conduct.

In JEAC Op. 09-20, the Committee recommended that a judge not add lawyers who may appear before the judge as “friends” on a social networking site, nor allow lawyers to add the judge as their “friend.”  The Committee believed “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.” Canon 2B.

The concern presented in this inquiry is whether a judicial assistant adding a lawyer as a “friend” on a social networking site indirectly conveys the message that the attorney, who may appear before the judge, has a special position to influence the judge.  The mere fact that personal information is being disseminated between the judicial assistant and a lawyer on the social networking site does not adversely impact the public perception nor compromise the integrity of the court system.  Prohibiting the judicial assistant from expressing himself/herself outside the courthouse infringes upon his/her First Amendment freedoms.  This form of expression by judicial assistants is not contemplated in our Canons and therefore not a violation of Canon 2B. 

As long as a judicial assistant utilizes the social networking site outside of the judicial assistant’s administrative responsibilities and independent of the judge, thereby making no reference to the judge or the judge’s office, this Committee believes that there is no prohibition for a judicial assistant to add lawyers who may appear before the judge as “friends” on a social networking site.

However, a judge would continue to have the responsibility under Canon 3C(2) to “require staff, court officials, and others subject to the judge’s direction and control to observe the standards of fidelity and diligence that apply to the judge. . . .”  Therefore, in the unlikely event that a lawyer attempts an ex-parte communication through the social networking site, the judge should direct the judicial assistant to immediately “de-friend” the lawyer and to immediately report it to the judge.

The committee also opines that a candidate for an elected judgeship and lawyers who may appear before the judge if elected may "friend' each other.

Finally, there is this opinion:

(1) Whether the Code of Judicial Conduct requires a judge who is a member of a voluntary bar association to “de-friend” lawyers who are also members on that organization’s Facebook page and who use Facebook to communicate among themselves about that organization and other non-legal matters.


(2) Whether a judge may allow an attorney access to the judge’s personal social networking page as a “friend” if the judge sends a communication to all attorney “friends” or posts a permanent, prominent disclaimer on the judge’s Facebook profile page that the term “friend” should be interpreted to simply mean that the person is an acquaintance of the judge, not a “friend” in the traditional sense.


(3) If a judge accepts as “friends” all attorneys who request to be included or all persons whose names the judge recognizes, and others whose names the judge does not recognize but who share a number of common friends, whether attorneys who may appear before the judge may be accepted by the judge as “friends” on the judge’s Facebook page.


(Mike Frisch)

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