NextGen Lawyer Judge’s Friend Request

Ali-Next-Gen-LawyerAli’s back.  Remember last time she decided to go networking (at her parents’ behest)?  Well, she hears that her bar association is having an awards reception.  She decides to check it out.

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.

Michelle Silverthorn

Michelle Silverthorn

Former Diversity & Education Director at Illinois Supreme Court Commission on Professionalism
After spending seventeen years living in the Caribbean, Michelle undertook a number of around-the-world detours before ending up at the doorstep of the Commission, including four years as a general litigator in New York and Chicago. She remembers pretty much everyone she’s met in her travels but she would especially like to meet again the passengers on a January 2001 flight from Miami to JFK. At the pilot’s request, they donated enough money for Michelle, who had her wallet stolen, to get back to college safely. She would very much like to tell them all thanks.
Michelle Silverthorn

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Michelle Silverthorn

Michelle Silverthorn

Former Diversity & Education Director at Illinois Supreme Court Commission on Professionalism
After spending seventeen years living in the Caribbean, Michelle undertook a number of around-the-world detours before ending up at the doorstep of the Commission, including four years as a general litigator in New York and Chicago. She remembers pretty much everyone she’s met in her travels but she would especially like to meet again the passengers on a January 2001 flight from Miami to JFK. At the pilot’s request, they donated enough money for Michelle, who had her wallet stolen, to get back to college safely. She would very much like to tell them all thanks.
Michelle Silverthorn

7 thoughts on “NextGen Lawyer Judge’s Friend Request

  1. This is a timely topic. Not only are young lawyers spending time on Facebook, but more and more judges are, too. A national study by the Conference of Court Public Information Officers found that 40 percent of judges report using social media profile sites like Facebook and LinkedIn, a proportion roughly equal to that in the general U.S. adult population.

    The Supreme Court of Ohio Board of Commissioners on Grievances and Discipline issued an advisory opinion in 2010 that stated a judge may be a “friend” on a social networking site with a lawyer who appears as counsel in a case before the judge, but cautioned: “As with any other action a judge takes, a judge’s participation on a social networking site must be done carefully in order to comply with the ethical rules in the Code of Judicial Conduct.” As the opinion begins, “A rose is a rose is a rose. A friend is a friend is a friend? Not necessarily. A social network ‘friend’ may or may not be a friend in the traditional sense of the word.” See http://www.supremecourt.ohio.gov/PIO/news/2010/BOCadvisoryOp_120810.asp.

  2. I would agree to proceed with caution. This area is still rapidly changing, and I tend to agree with the OH court opinion cited above, that not every “friend” is created equal, nor does the reasonable perception of influence remain a static concept as these social mediums evolve. To add a wrinkle to the hypo, suppose the judge, like many other elected officials, creates a professional figure Facebook page, and invites Ali to “like” the page. Does that have the same effect? I’m not sure that it does, but other than the unfortunate use of the word “friend” by Facebook, I am also not sure the distinction is really justified. The bigger issue in this hypo seems to me whether, if Ali ever did appear in this judge’s courtroom, the judge would feel compelled to recuse based on the family connection that already exists. I suspect the judge’s decision at that time will be the same regardless of Facebook friend status.

    1. Interesting point on the recusal issue. The judge may have to do that regardless of whether Ali is his Facebook friend or not. But let’s say I just met this judge at a networking event and he (like many) adds me as a Facebook friend five minutes after we meet? What happens then? The Facebook public page is also interesting – should the same rule apply there as does for campaign contributors to judicial campaigns?

  3. why is it necessary to be facebook friends with any judge before whom one may appear? why not just deny the request?

    the test in illinois under a recent sup. ct case, obrien, is the appearance of impropriety. certainly if a judge considers me a friend, that is such an appearance.

  4. Some case law addressed this in Pennsylvania last year too. If I remember correctly, the Pa. Court suggested that Facebook friends requires recusal; failure to do so may result in the judge’s decision being overturned (DUI case maybe?).

    I would think, and hope, that improper communications (especially ex parte) would be the real focus, whereas merely having a social media connection, e.g. facebook friend, twitter follow, etc., seems unsubstantiated and petty to support (de facto) impropriety. To take the example “offline”, what if they are members of the same country club? Monday night bridge club? Live in the same residential block? And so on. What about the available pool of friends to a judge in Pope Co., IL (pop. 4,470) vs. Cook Co. (pop. 5.2m)?

    Another recent case:
    Youkers v. State, No. 05–11–01407–CR., 2013 WL 2077196, Ct of Appeals Tx, Dallas, May 15, 2013.
    Background: State filed motion to revoke defendant’s supervision. Defendant entered open plea of true to State’s allegations and requested reinstatement of his community supervision. The 219th Judicial District Court, Collin County, sentenced defendant to eight years’ imprisonment and thereafter denied his motion for new trial. Defendant appealed.
    Holdings: The Court of Appeals, Murphy, J., held that:
    …as a matter of apparent first impression, designation of trial judge as “friend” of victim’s father on social media website was insufficient to show bias, as basis for recusal; …

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