The Florida Judicial Ethics Advisory Committee this week issued an opinion that judges should not “friend” lawyers who appear before them on Facebook. The Committee stated that doing so “reasonably conveys to others the impression that these lawyer ‘friends’ are in a special position to influence the judge.”
All states have rules that require judges to reveal to the parties any form of relationship between the judge and a lawyer appearing before them: contributor, family ties or social acquaintance. Its not surprising that a new form of social relationship would require some scrutiny to see how it fits into the already established guidelines. FB has become an integral part of the social fabric but it provides perhaps the most tenuous definition of “friend” in history. Many times after someone is friended, the other person never or at best rarely has any further communication with them. So is that such a unique connection that it should prevent one from appearing before a judge without full disclosure? Probably. Because lawyers and judges are required to avoid even the “appearance of impropriety.” I know I would want to know if my adversary was a FB friend of the judge presiding over my trial.
Since judges come from the ranks of lawyers, it is common that a lawyer could know a judge personally and even have regularly socialized with them before they took the bench. Does that require the one lawyer to “unfriend” the other once he or she becomes a judge? It depends. (By the way, how long do you think it will be before SpellCheck recognizes that “friend” is now a verb and that “unfriend” is a word in the lexicon so I can get rid of that squiggly red underline?) I think the guideline should be whether you are so close or have such a personal connection that you would have reported it to your adversary before there ever was a FB. After all, lawyers have navigated this fine line before. We are routinely asked for contributions by judges for their re-election campaigns. (Try turning that request down). I have even been approached by the brashest judges in open court, called up to the bench during a court appearance to be reminded of a particular fundraiser coming up in the weeks ahead, for example. So the litmus test should be that you can be friends with a judge if your relationship existed to the extent that a judge would be obligated to reveal it to your adversary anyway. Then, that you are now electronically acquainted would hardly matter.
As a practicing litigator who is also somewhat involved in politics, I know a lot of judges personally, but the only one who is my FB friend is my former law partner who became a judge earlier this year. I did not unfriend him when he was appointed because I knew that whenever I appeared before him he would have to disclose that we had practiced law together for nearly 20 years. Being his FB buddy would be the least of the issues. But I also do not friend and have not accepted a friend request or suggestion from several other judges with whom I did not have a close social relationship before they became judges. It just didn’t seem right and I would not want to have to be there on the record when they announced “By the way, the parties should be aware Mr. Michelen and I are Facebook friends.” Then an inquiry would arise as to how much activity there is between our pages. It would sound like a middle school cafeteria.
Its also the request itself that puts the test to the relationship. Florida still permits a lawyer to become a “fan” of a Judge’s Fan Page as long as the judge cannot have control over who does or does not become a fan of the page. So it appears the Committee was more focused on the informal squeeze being applied by the simple friend request and the conflict it puts on lawyers to turn down or accept such a request by a sitting judge. After all, who hasn’t sat there a few seconds pondering the effect of accepting or ignoring a friend request, glad that the other party cannot see your indecision? (at least people don’t know when you “hide” their comments. -They don’t know right?) But a judge would still have to reveal to all parties that a lawyer is a “Fan” of his. A fate more embarrassing for all involved, in my opinion, than admitting they are “friends.”(” I just want to state for the record that Mr. Michelen is a fan of mine” are words that will never be uttered by a judge in any courtroom I promise you).
FB has certainly impacted litigation enough already without adding this layer of grief on top of it. There have been cases of jurors sending out friend requests to witnesses in criminal trials (http://www.newsday.com/long-island/crime/attorneys-juror-tried-to-friend-witness-on-facebook-1.1217767) and to parties in litigation (http://bowtielaw.wordpress.com/2009/11/09/when-jurors-friend-the-plaintiffs%E2%80%A6/). A lawyer got into some hot water for having his paralegal “friend” a witness in an upcoming trial in order to learn more information about the witness. (http://paralegalgateway.typepad.com/my_weblog/2009/06/lawyer-cannot-ask-paralegal-to-facebook-friend-a-witness.html). Its the distance of FB that makes it seem more plausible to do so than say just calling the witness or party on the phone and asking them for coffee or a drink. But the impropriety is still the same.
Of course, other relationships may be tested by the friend request. As a law professor, I turn down friend requests from my current students but accept them from students who have completed my class. But if they were to enroll in another class I taught, wouldn’t I have to unfriend them? And what about high school and elementary school teachers who are sent friend request by parents of students that they have in the classroom? It can’t be right that they become FB friends while the teacher still has an effect over the student’s grades (“Sure, Bobby got the A over my Billy because his Mom and the teacher are FB friends!”). What about supervisors and staff in a business? Senior officers and line officers in police departments and firehouses?
So I think it won’t be long before every State comes down with a ruling similar to Florida’s that bans this form of relationship to avoid the appearance of impropriety. And I hope that other professions and businesses follow suit and establish guidelines and limitations for when it is appropriate to friend and be friended. Because, on another note, while lawyers get a lot of grief about their ethics (and for many deservedly so) we are the most strictly self-policed profession in the country. Our disciplinary decisions are not only made public, they are plastered on the front page of the bar association newspaper, or in New York, the esteemed New York Law Journal. Meanwhile doctors’ disciplinary decisions are guarded like the recipe for Kentucky Fried Chicken? Every lawyer must contribute to a fund established to protects clients ripped off by other lawyers. How about a fund like that for licensed plumbers? Why should only our profession care who are “friends” are? So while I applaud Florida for this ruling and hope that other states follow suit, I would like this concern over impropriety to spread to other fields like some new celebrity sex video.