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September 2, 2010 |
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| March 18, 2010 |
By: Ken Strutin |
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opulous and widespread, social networking sites draw participants from an increasingly broad spectrum. They comprise an open forum that has torn down walls established by many institutions, including the legal system.
Social networking online is a remote sensory experience engaging our minds at many levels, and it will take time for us to adapt to this unprecedented way of communicating with one another. Moreover, it imposes a unique burden on the judicial component of our system. Several recent cases illustrate the pitfalls for judges and lawyers who use social networking.
Early in 2009, the Advisory Committee on Judicial Ethics[FOOTNOTE 1] issued opinion No. 08-176 prompted by an inquiry from a judge who received an invitation to join a social networking site. This site was aimed at professional networking that would allow sharing business-related information, contacts and, most notably, the ability to "interact with lawyers and litigants."
The committee recognized a host of potential benefits from membership, such as staying in touch with distant family members, former schoolmates and associates. There was nothing "inherently" wrong with joining, since it was comparable to the type of socializing judges already do in person. They keenly divorced the mode of communication from how it was used.
The Rules of Judicial Conduct cautioned against the appearance of impropriety and emphasize the need for promoting public confidence in the integrity of the judiciary and maintaining its dignity.
The first tocsin for a judge's online profile is that it is "public" in nature, and the items posted there can raise issues depending on their content and affiliation.
Secondly, the profile can serve as a public Rolodex, listing as "friends" attorneys, litigants, experts, or anyone who might participate in the legal system. And it could invite inquiries from the public or litigants about some matter before the court. Overall, it could potentially convey the wrong impression about the extent of the relationships of those "friends."
The committee's well-thought-out opinion was not intended to be exhaustive. New issues crop up constantly, which is why they encouraged judges to stay on top of developments in social networking features, such as privacy settings.[FOOTNOTE 2]
The unforeseen perils of online communication and participation by judges and lawyers have been revealed in several scenarios that will highlight what happens when social networking sites and ethical boundaries intersect.
Attorneys with profiles that can be seen by judges run risks ranging from professional embarrassment to potentially unethical behavior.
At last year's American Bar Association program called Courts and Media in the 21st Century, a Texas judge related the story of a lawyer who requested a continuance in court due to the death of a family member, but whose status updates on Facebook revealed she had been drinking and partying all week.[FOOTNOTE 3]
The South Carolina Advisory Committee on Standards of Judicial Conduct in opinion No. 17-2009 concluded that a magistrate judge could have law enforcement personnel and court employees as "friends" on the magistrate judge's Facebook page. The proviso was that the magistrate judge did not "discuss anything related to the judge's position as magistrate." They even went so far as to underscore on the value of public education that was possible through a social networking profile.
The Florida Supreme Court scrutinized the entanglements arising from the use of contact lists that appear on a judge's profile. In Judicial Ethics Advisory Committee opinion No. 2009-20, they responded to questions raised by four types of social networking communications: (1) judge's posting of comments or other materials on judge's profile within limits of Judicial Code (yes); (2) friending lawyers who appear before the court (no); (3) judge's election campaign committee posting information on their separate profile (yes); and (4) option to allow lawyers appearing in the judge's court to list themselves as fans on the campaign profile (yes).
The answers to these questions depended in part on the ability of the judge or the re-election committee to filter or approve friends and fans and adjust the privacy level settings on those sites.
Citing Canon 2B of the Florida Code of Judicial Conduct, the court emphasized the need to avoid giving the impression that certain lawyers were in a "special position to influence the judge." The "friending" process was selective and the judge would have needed the power to accept or reject requests from lawyers to be added or vice versa for the judge to appear on a lawyer's profile as a friend.
The court concluded that identifying a lawyer who may appear in that court as a "friend" on the judge's public profile gave the wrong impression. However, they found no problem with lawyers who did not appear before the judge or other persons being added as "friends."[FOOTNOTE 4]
Notably, a minority view of the court's opinion believed that the term "friend" as applied to a social networking site did not carry the same import as the common definition of friend. In this special context, a lawyer's name appearing on a judge's contact list did not give visitors the impression of a special bond or position of influence.
'FANS' OF JUDGES
Finally, the listing of fans on a judge's campaign site was viewed differently, so long as the election committee could not accept or reject anyone seeking to be added. The absence of discretion in controlling admission or exclusion of names appearing on the profile was the distinguishing characteristic.
In North Carolina, a judge was publicly reprimanded for establishing contact with an attorney in an active case through a social networking site. The Judicial Standards Commission Inquiry No. 08-234 described how a district court judge presiding over a custody matter had an in chambers discussion with the attorney representing the defendant/father about using Facebook. The plaintiffs attorney was present but did not get involved in their talk.
The judge and the defendant's attorney friended each other on their respective profiles. They each posted comments about the case and reviewed each other's sites. The judge informed plaintiffs attorney about the online exchanges.
The judge had also done a Google search on the plaintiff/mother's photography business and read poetry she had posted there as well. He did not reveal this research to either side until after the custody hearing was concluded and the order entered. The plaintiffs attorney filed a motion asking for the order to be vacated, a new trial held and recusal of the judge -- all of which was granted.
The commission found that the judge had improper ex parte communications with an attorney representing a party in a case before him as well as allowing himself to be influenced by information about the plaintiff he found through independent internet research. As a result, his actions were prejudicial to the administration of justice under the North Carolina Code of Judicial Conduct.
Interestingly, the Indiana Supreme Court in A.B. v. State, 885 N.E.2d 1223, 1224 (Ind. 2008), tacitly approved firsthand inspection of a social networking site in order to grasp its mechanics, which was an issue in the case.
In this harassment prosecution, the record had not been fully developed on the use of social networking sites:
As a preliminary matter, we note that the evidence presented at the fact-finding hearing was extremely sparse, uncertain, and equivocal regarding the operation and use of My Space.com ... which is central to this case ... The Commentary to Canon 3B of the Indiana Code of Judicial Conduct advises: 'A judge must not independently investigate facts in a case and must consider only the evidence presented.' Notwithstanding this directive, in order to facilitate understanding of the facts and application of relevant legal principles, this opinion includes information regarding the operation and use of MySpace from identified sources outside the trial record of this case.
The upshot of these opinions is that social networking sites require new line drawing. Although the rules do not expressly cover this mode of communication,[FOOTNOTE 5] the fundamental query is about content and behavior. Judges and lawyers inevitably will be using blogs, Twitter, Facebook, or some yet to be imagined forms of communicating and connecting online. And based on the experiences so far some guideposts have emerged.
An article published by the National Judicial College makes several salient observations applicable to these new forms of media.[FOOTNOTE 6] It points out that information on judge-authored sites could form the basis for recusal, convey misimpressions, or contain improper public comments about matters that might come before the court. Also they may be too revealing such as showing status, schedules, or other personal details.[FOOTNOTE 7] Basically, it admonished that adherence to the ethical guidelines in any medium was the best standard.
CONCLUSION
Transitions from one form of communication to another never occur neatly. They frequently wend their way through society by fits and starts, embraced by a few at first, then by masses of people until they are commonplace.
But as technology cuts a swath through established practices and institutions in this piecemeal fashion, we have to be cognizant of the perils to our professional lives and the judicial process. A social networking site cannot sanitize conduct that transgresses ethical boundaries when done in person or in print.
Ken Strutin is director of legal information services at the New York State Defenders Association.
::::FOOTNOTES::::
FN1 http://www.courts.state.ny.us/ip/acje/.
FN2 See, e.g., "The 3 Facebook Settings Every User Should Check Now," The New York Times, Jan. 20, 2010.
FN3 "Facebooking Judge Catches Lawyer in Lie, Sees Ethical Breaches," ABA Journal Law News Now, July 31, 2009.
FN4 See also State of Nev. Comm'n on Jud. Discipline Op. JE08-010 (Aug. 22, 2008)("On an official court website which provides information to self-represented individuals in family law matters, judges may list the names of, and provide a link to, the websites of attorneys who have volunteered in a program which offers a free consultation with a lawyer regarding those matters.").
FN5 But see, e.g., Amendment to the Code of Ethics, The Judiciary of Malta News, Feb. 15, 2010 ("membership of 'social networking internet sites' is incompatible with judicial office.").
FN6 "Bench Blogging: Where Should Judges, Lawyers and Court Personnel Draw the Line?" Case In Point, Spring/Summer 2007, at 3. See generally Social Media and the Courts Resource Guide (National Center for State Courts, mod. Feb. 15, 2010).
FN7 See, e.g., "Staten Island Criminal Court Judge to Be Transferred to Manhattan After Facebook Postings, Sources Say," Staten Island Advance, Oct. 15, 2009.
This story was first published in the New York Law Journal, an affiliate of the Daily Business Review.
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