Facebook, Social Networking, and the Appearance of Impropriety. For Judges Less Is More

AuthorKaren Eltis
Facebook, Social Networking, and the
Appearance of Impropriety
For Judges Less Is More
It was said in 2010 that 40 percent of all US judges engage in social net-
working pra ctices.1 Needless to say, the statistics are far higher for attorneys
generally, if only due to the median age.
Although the benets are clear to most users, t he perils remain un-
known to many judges and lawyers, who could easily avoid unnecessar y
humiliation or worse by taking simple precautions. As David Mangan
correctly asserted, “e belief that social media is ‘only’ another medium
for oral discussion remains ubiquitous, thereby oentimes engendering
a ‘disconnect’ between users’ perceptions of the medium and legal
distinctions”2 between oral discussion and social media. Indeed, this gen-
eral lack of awareness is evidenced by one such attorney getting caught in
an embarrassing lie by the judge in front of whom she was pleading: the
latter had simply checked the lawyer’s Facebook page:3 “e lawyer had
asked for a continuance because of the death of her father. e lawyer
1 Conference of Court Public I nformation Ocers, New Media and the Court s:
e Current Status and a Lo ok at the Future (26 August 2010), online: CCPIO
http://ccpio.org/w p-content/upload s/2012/02/2010-ccpio-repor t-summar y.pdf.
2 David Mangan, “A Platform for Discipline: Social Med ia Speech in the Work-
place” 2015 Osgoode Legal Studies Research Paper Series, Paper No 85, online:
3 Molly McDonough, “Facebooking Judge Catches Law yer in Lie, Sees Ethical
Breaches #ABAChicago” ABA Journal (31 July 2009), online: w ww.abajournal.
ethica l_lines_ abachicago/.
Courts , Litigants, and the Digi tal Age126
had earlier posted a string of status updates on Facebook, detai ling her
week of drinking, going out and par tying. But in court, in front of [Judge]
Criss, she told a completely dierent story.4
Interestingly, the magistrate in question, Susan Criss , an (elected) state
judge in Texas, was herself the source of controversy with respect to social
networking as she used Facebook to “friend ” lawyers for possible future
campaign purposes. It appears t hat “[Judge] Criss gets around the ethical
rules prohibiti ng ex parte communications between judges and lawyers
by asking lawyers to ‘de-friend ’ her when they’re trying cases b efore her.5
Attempting to respond to the prevalence of this phenomenon, some
states (Florida, in particu lar) have gone so far as to ban judicial social
networking between judges and attorneys.6 us, for instance, a F lorida
judge needed to recuse herself from a case aer sending a Facebook friend
request to a litigant who was appearing before her in a divorce case.7 e
litigant had refused the request, and her lawyer then cla imed that the
judge retaliated against his client by awarding her “most of the marital
deb t.”8 What’s more, another Florida judge had to recuse himself because
he was “friends” with a prosecutor on Facebook.9 As Gross J (concurring)
colourfully war ns in this vein:
Judges do not have the unfettered social f reedom of teenagers. Central
to the public’s condence in the courts is t he belief that fair decisions
are rendered by an imparti al tribunal . Maintenance of the appeara nce
of impartial ity requires the avoidance of enta nglements and relation-
ships that compromise that appeara nce. Unlike face to face social inter-
action, an electronic blip on a soc ial media site can become eter nal in
4 Ibid. See also Dah lia Lithwick & Graham Vyse, “Tweet Justice: Should
Judges Be Using Social Medi a?” Slate (30 April 2010), online: ww w.slate.com/
5 Ibid.
6 Florida Supreme Court, Judicial Et hics Advisory Committe e, “Opinion 2009-20”
(17 November 2009), online: www.jud6.org/LegalC ommunity/LegalPract ice/
opinions/jeaco pinions/2009/2009 -20.html [“Opinion 20 09-20”]. See also John
Schwartz, “For Judges on Facebo ok, Friendship Has Limits” e New York
Times (10 December 2009), online: htt p://nyti.ms/1TD3xR0.
7 Jacob Gershman, “Judge Disquali ed over Facebook ‘Friend’ Request” (27
January 2014) e Wall Street Journal (blog), online: Law Blog http://
blogs.wsj.com/l aw/2014/01/27/judge-disqu alied- over-facebook-friend-
8 Ibid.
9 Domville v Florida, No 4D12-556 (Fla Dist Ct App 16 Jan 2013), online:
www.4dca.org/opinions/Jan%202013/01-16-13/4D12-556.rehg.pdf [Domville].

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