Halfway through the event, Ali sees a parent of one of her friends from high school. The parent is now a state court judge. He tells Ali to be patient and hang in there – the clients will come. Later that evening, Ali sees a Facebook friend request from the judge. Ali wonders if she can accept the Facebook request.
The answer is – it depends. Most of the ethics opinions on this topic focus on the behavior of the judge in making the friend request, specifically Canon 2B of the Code of Judicial Conduct. In Illinois, Canon 2B states, in part, “A judge should not allow the judge’s family, social or other relationships to influence the judge’s judicial conduct or judgment. A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge.”
The Florida Supreme Court’s Judicial Ethics Advisory Committee held that it is judicial misconduct for a judge to add as “friends” on Facebook lawyers who may appear before that judge. Fla. Jud. Ethics Advisory Opinion 2009-20. The committee stated that listing those lawyers 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.
But Ali has no current or prospective clients. She would contend that that she is not a lawyer who “may” appear before the judge. On the other hand, Ali doesn’t know how many other friends the judge has. What if it’s only a dozen? If she becomes one of his dozen friends, it likely would connote that she is in a special position to influence him. If he had five hundred friends, or a thousand, the answer could be different.
A Kentucky ethics opinion recognized that unique reality of social media. The Ethics Committee of the Kentucky Judiciary in Formal Judicial Ethics Opinion JE-119 held that a judge could be a member of an internet-based social networking site because, “[w]hile the nomenclature of a social networking site may designate certain participants as “friends,” the view of the Committee is that such a listing, by itself, does not reasonably convey to others an impression that such persons are in a special position to influence the judge.”
Also on February 21, 2013, the ABA issued Formal Opinion 462 on a Judge’s Use of Electronic Social Networking Media. The ABA concluded that a judge “may participate in electronic social networking, but as with all social relationships and contacts, a judge must comply with relevant provisions of the Code of Judicial Conduct and avoid any conduct that would undermine the judge’s independence, integrity, or impartiality, or create an appearance of impropriety.”
Remember, the answer could be different if Ali had an active case before the judge. For example, in North Carolina, a judge was reprimanded for friending a lawyer in a pending case on Facebook, posting and reading messages about the litigation, and accessing the website of the opposing party. In the Matter of B. Carlton Terry Jr., North Carolina Judicial Stds, Comm’n, No. 08-234 (April 1, 2009).
Ali decides to accept the judge’s request. As she’s doing so, she reviews her list of friends. She’s up to fifteen hundred! She’s fairly certain at least some of them need legal help. She’s trying to decide how she can use her Facebook friends to drum up some business. Any ideas? We’ll find out next time.