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

• Author: Karen Eltis
• Profession: University of Ottawa Columbia Law School
• Pages: 91-107

91

CHAPTER 6:

FACEBOOK, SOCIAL

NETWORKING, AND THE

APPEARANCE OF IMPROPRIETY:

FOR JUDGES LESS IS MORE

A. INTRODUCTION

It is said that 40 percent of all US judges engage in social networking prac-

tices.1 Needless to say, the statistics are far higher for attorneys generally,

if only due to the median age.

While the benets are clear to most users, t he perils remain unknown

to many judges and lawyers, who could easily avoid unnecessary humilia-

tion or worse by taking simple precautions. is general lack of awareness

is evidenced by one such attorney getting caught in an embarra ssing lie

by the judge in front of whom she was pleading, aer the latter simply

bothered to check her Facebook page2: “e lawyer had asked for a con-

tinuance because of the death of her father. e lawyer had earlier posted

a string of status updates on Facebook, detailing her week of drinking,

going out and partying. But in cour t, in front of [Judge] Criss, she told a

completely di erent story.”3

1 New Media and the Courts: The Current Status and a Look at the Future (Conference

of Court Public Information Ocers, 26 August 2010), online: www.ccpio.org/

newmediaproject/New- Media-and-the-Courts- Report.pdf.

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

Breaches #ABAChicago” (31 July 2009), online: www.abajournal.com/news/

article/facebooking_ judge_catches_lawyers_ in_lies_crossing_ethical_lines_

abachicago/.

3 Ibid. See also Dahlia Lithwick & Graham Vyse, “Tweet Justice: Should Judges Be

Using Social Media?” (30 April 2010), online: www.slate.com/id/2252544/.

Courts, Litigants and the Digital Age: L aw, Ethics and Practice

92

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 prohibiting ex parte communications bet ween judges and lawyers

by asking lawyers to ‘de-friend ’ her when they’re trying case s before her.”4

Attempting to respond to the prevalence of this phenomenon, some

states (Florida in particular) have gone so far as to ban judicial social net-

working between judges a nd attorneys altogether.5 Other US jurisdictions,

such as Ohio most recently, have been far more permissive, ruling that

judges can “friend” lawyers appearing as counsel before them provided

that the “judge’s participation on a social networking site must be done

carefully” i n order to comply with ethica l rules.6 Delaware, for its part, has

stressed “[c]omplete separation of a judge from extra-judicial activities is

neither possible nor wise [as] a judge should not become isolated from the

society in which a judge lives.”7 at “middle of the road” approach was

echoed in New York8 where judges are to “exercise discretion” in order

to “avoid impropriety”9 such as that apparently fostered by a Staten Is-

land judge, transferred to Manhatta n by reason of his oending Facebook

posts regarding pend ing cases.10

North Carolina, anot her example, reprimanded a judge who “friended”

counsel in a pending divorce case, labelling these “ex parte” contacts and

4 Ibid.

5 Florida Supreme Court, Judicial Ethics Advisory Committe e, Opinion 2009-20 (17

November 2009), online: www.jud6.org/LegalCommunity/LegalPractice/opin-

ions/jeacopinions/2009/2009-20.html [Opinion 2009 -20]. See also John Schwartz,

“For Judges on Facebook, Friendship Has Limits” The New York Times (10 Decem-

ber 2009), online: www.nytimes.com /2009/12/11/us/11judges.html [Schwartz].

6 The Supreme Court of Ohio, Board of Commissioners on Grievances and Disci-

pline, Opinion 2010-7 (3 December 2010) at 1, online: www.delawarelitigation.

com/uploads/le/int44%282%29.pdf.

7 Judge Thomas E Hornsby (ret), “The American Bar Asso ciation (ABA) 2007 Model

Code of Judicial Conduct: What Does It Mean to Juvenile and Family Cour t Judg-

es?” (2011) 62:1 Juvenile and Family Court Journal 67 at 80, online: http://onlineli-

brary.wiley.com/doi/10.1111/j.1755-6988.2010.01057.x/pdf. See also “Comparison

of the Judical Canons of Florida, New York, South Carolina, Texas and the ABA,”

online: www.cllegal.com/Comparison-Of-Canons.html.

8 New York State Unied Court System, O pin io n 0 8-176 (29 January 2009), online:

www.nycourts.gov/ip/judicialethics/opinions/08-176.htm.

9 Ibid.

10 John M Annese, “Staten Island Criminal Court Judge to Be Transferred to Manhat-

tan after Facebook Postings, Sources Say” (15 October 2009), online: ww w.silive.

com/news/index.ssf/2009/10/criminal_court_judge_to_be_tra .html.