We talked before about the importance of courtroom etiquette from a webinar led by Judge Stephen Louis Dillard, the 73rd judge of the Court of Appeals of Georgia, and David Lat, a former Federal Court clerk and founder of the widely known blog Above the Law. We want to dig a little deeper and explore the debate of ethics when it comes to befriending a judge on social media.
Is it improper for a judge to be an attorney’s Facebook friend if the attorney has a case pending before the judge?
The American Bar Association (“ABA”) Model Code of Judicial Conduct states that a judge must act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, avoid impropriety as well as the appearance of impropriety, must perform the duties of the office without bias or prejudice, and cannot permit family, social, political, financial, or other interests or relationships to influence the judge’s conduct or judgment. Further, the rules prohibit a judge from communicating with parties or their lawyers without the other side being present, and from making any public or non-public comment that could affect the fairness of a matter pending before the judge.
No Talking During the Case
The ABA Model Rules of Professional Conduct generally prohibits a lawyer from having any communications with a judge about a matter that is pending before the judge unless the other side is present. The rules also prohibit a lawyer from knowingly assisting a judge in conduct that is a violation of applicable rules of judicial conduct or other law.
So where does that leave a lawyer who has “friended” a judge on Facebook?
Recently, in a 4-3 decision, the Florida Supreme Court ruled that a judge is not disqualified from an attorney’s case merely because the judge is a Facebook “friend” of that attorney. The ruling brings Florida in line with the majority view across the country. The Court found that being Facebook “friends” does not mean there is a “close or intimate relationship” that might cause the judge to have to withdraw from the case.
Several other states have reviewed this issue and reached similar conclusions. In 2013, the ABA issued a formal opinion, stating:
When used with proper care, judges’ use of [Electronic Social Media] does not necessarily compromise their duties under the Model Code [of Judicial Conduct] any more than use of traditional and less public forums of social connection such as U.S. Mail, telephone, email or texting.
ABA Formal Opinion 462 “Judge’s Use of Electronic Social Networking Media” (February 21, 2013)
The Florida decision found that the majority position in various jurisdictions is that mere Facebook friendship alone does not create the appearance of impropriety under the code of judicial conduct.
What did NCSB have to say?
In 2014, the North Carolina State Bar offered some guidance on the matter. Below is a summary of some of the tips from 2014 FEO 8:
- During the time the lawyer has a matter pending before a judge, the lawyer may not use social media to communicate with the judge about the matter.
- It may be best not to accept an invitation from a judge to connect on social media during the pendency of a matter before the judge.
- An attorney should not state or infer that the attorney has insider connections with the judge as it is professional misconduct to “state or imply an ability to influence improperly a government agency or official.”
- It is generally okay to endorse a judge’s legal skills or write a recommendation on the judge’s profile page, subject to the above limitations, but an attorney shouldn’t display endorsements or recommendations from a judge.
As in all things, when in doubt, it may be best to take the conservative approach.
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