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

• Author: Karen Eltis
• Pages: 125-151

125

CHAPTER 6

Facebook, Social Networking, and the

Appearance of Impropriety

For Judges Less Is More

A. INTRODUCTION

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:

http://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?article=1084&co

ntext=olsrps.

3 Molly McDonough, “Facebooking Judge Catches Law yer in Lie, Sees Ethical

Breaches #ABAChicago” ABA Journal (31 July 2009), online: w ww.abajournal.

com/news/article/facebooking_judge_catches_lawyers_in_lies_crossing_

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/

id/2252544.

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-

request/?mod=WSJBlog.

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].