Most attorneys—and many clients—have heard the old saying “A good lawyer knows the law; a great lawyer knows the judge.” But in this digital age, in which over 72% of all adult Americans have at least one social networking profile and sites like Facebook boast more than 1.12 billion users worldwide, what are the consequences when a lawyer or even a party happens to be Facebook “friends” with a judge?

Recent Challenges

The family law arena has been the scene of recent challenges to judicial impartiality based on Facebook “friendship,” even when the online relationship is an attenuated one. At least ten states—New York, California, Kentucky, South Carolina, Florida, Oklahoma, Maryland, Massachusetts, Ohio, and Tennessee—have issued judicial ethics advisory opinions providing guidance on judges’ social media activity. In addition, in February 2013, the ABA Standing Committee on Ethics and Professional Responsibility came out with Formal Opinion 462 on “Judges’ Use of Electronic Social Networking Media.” Most of the states to address this subject, along with the ABA Formal Opinion 462, have given a cautious “thumbs up” to judges wishing to venture onto sites like Facebook and Twitter. While they remind judges that existing canons of judicial conduct will still apply in cyberspace, these opinions simultaneously acknowledge that being a judge’s “friend” on Facebook doesn’t indicate that one has a special relationship and position of influence with that judge.

An exception to this pragmatic approach is Florida, whose Supreme Court Judicial Ethics Advisory Committee takes a much more draconian view of judges and social networking. Not only does Florida not permit judges to have Facebook “friends,” an attorney’s “friend” status with a judge is automatic grounds for that judge’s disqualification. See, for example, Domville v. State of Florida, a 2012 Florida appellate case that rationalized that because “judges do not have the unfettered social freedom of teenagers,” maintaining “the appearance of impartiality requires the avoidance of entanglements and relationships that compromise that appearance.”

Judges Should Proceed with Caution

In Lacy v. Lacy, a 2013 custody case from Georgia, a father appealed three different trial court orders (from three different judges). Regarding one of the orders in this contentious case, Mr. Lacy argued that the trial judge should have recused himself sua sponte on grounds of bias toward Mrs. Lacy. As support for his argument, Mr. Lacy produced a copy of a comment on his Facebook page—allegedly made by the mother weeks after the hearing in question—in which she boasted “Judge Parrot and my dad had a meeting the week before our case and guess what you lost your kids.” But the appellate court was not persuaded that such an accusation held any merit, holding that “the mother’s reference on Facebook to a meeting is not evidence that the judge obtained information relevant to the case from an extra-judicial source, much less that he based his ruling on any such external information.” It’s also worth noting that this same case was so rife with disparaging comments being made by both parents via social media that the trial judge entered an injunction (upheld by the appellate court) barring both parties from making comments about the other on social networking sites.

A similar challenge was made in another 2013 contentious divorce case, this time in Alabama. In Clore v. Clore, the trial court entered an order dividing up the marital assets and awarding some rehabilitative alimony to the ex-wife, albeit considerably less than she had sought. The ex-wife moved for a new trial, arguing that the judge’s social networking connection with the parties’ adult daughter (who grew up in the trial venue but had since moved to England) had somehow tainted the judge’s ruling and warranted her recusal. The trial judge denied the motion, pointing out that:

“This Facebook is a social networking site where the word “friend” is used in a way that doesn’t have anything to do with the way before this Facebook.com ever existed—the way we used the word “friend.” Just because a person is connected to me on here in this manner doesn’t have anything to do with a personal relationship. I don’t have a personal relationship with this friend. We all live in a small town. I have heard both of you all’s names. I heard the daughter’s name before we came in here today.”

The appellate court agreed, noting that a showing of something more than the “bare status of the parties’ daughter as a friend of the judge” would be necessary before any recusal could be granted.

A phrase from social media’s own contributions to our lexicon might be an appropriate way to characterize the views toward being Facebook “friends” with a judge—it’s complicated. Judges should proceed with caution regarding social media, but they should still proceed.

Source: FamilyLawyersMagazine