I find this hard to believe, or maybe I just am feeling a little taken back …. But let me start at the beginning.
Apparently, the legal profession has been talking about whether judges can ethically be friends of others on Facebook . I think this is silly. IMHO, of course they can. They just can’t tweet and put on their status updates things about their job like, “Had a litigant make a stupid argument today. What a loser.”
Apparently, someone was actually concerned enough to take this to the South Carolina Department of Justice which issued the following opinion (link here):
“A judge may be a member of Facebook and be friends with law enforcement officers and employees of the Magistrate as long as they do not discuss anything related to the judge’s position as magistrate.”
The SC opinion just talks about law enforcement officers and employees of the Judge – not lawyers appearing before the judge. Although you could argue there is a distinction (namely that attorneys are representing a party where as the law enforcement officers are on the side of administering justice), that line blurrs when you consider that law enforcement officers could include prosecutors and could be witnesses for the state.
I don’t see how the issue of judges being friends is any different from any lawyer being a friend on Facebook or any employee for that matter. Lawyers cannot reveal confidences and employees cannot divulge trade secrets or confidential information (including pricing and strategies) of their employer. That’s right, even regular old employees cannot put on Facebook something like “we are not bidding on this project” or “we got intel today that made us all jump up and down because they will announce XYZ tomorrow” or ”we are bidding xyz for 8 mil and going to blow them away” or well, you get the picture. Just don’t say that kinda stuff and you are cool, right?
Common sense. Well, there’s more. The Judicial Ethics Advisory Committee of the Florida Supreme Court was asked to answer these two questions (among others) (link here):
Whether a judge may post comments and other material on the judge’s page on a social networking site, if the publication of such material does not otherwise violate the Code of Judicial Conduct.
ANSWER: Yes.
Whether a judge may add lawyers who may appear before the judge as “friends” on a social networking site, and permit such lawyers to add the judge as their “friend.”
ANSWER: No.
Huh? I get the first one, but the second? Respectfully, I disagree with their reasoning. They explain (underline is mine):
The inquiring judge proposes to identify lawyers who may appear in front of the judge as “friends” on the judge’s page and to permit those lawyers to identify the judge as a “friend” on their pages. To the extent that such identification is available for any other person to view, the Committee concludes that this practice would violate Canon 2B.
Canon 2B states: “A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge.”
***
The Committee believes that listing lawyers who may appear before the judge as “friends” on a judge’s social networking page reasonably conveys to others the impression that these lawyer “friends” are in a special position to influence the judge. This is not to say, of course, that simply because a lawyer is listed as a “friend” on a social networking site or because a lawyer is a friend of the judge, as the term friend is used in its traditional sense, means that this lawyer is, in fact, in a special position to influence the judge. The issue, however, is not whether the lawyer actually is in a position to influence the judge, but instead whether the proposed conduct, the identification of the lawyer as a “friend” on the social networking site, conveys the impression that the lawyer is in a position to influence the judge. The Committee concludes that such identification in a public forum of a lawyer who may appear before the judge does convey this impression and therefore is not permitted.
Does anyone really think that if a lawyer is a Facebook “friend” of a judge that that alone is enough to suggest an impression that that person could influence the Judge?
Perhaps people use Facebook differently. Think about it this way. Facebook has supplanted the use by most people of their own web site. Back in the day, computer geeks all had their own bulletin board. Then in the 90s, everyone had their own homepage (I had one on Geocities). Now, we have Facebook pages.
So let’s apply Florida’s reasoning to homepages. Could a judge have his or her own homepage open to the public with cute pictures of their cats and runs and awards and speeches? Sure they could (subject to the same ideas above that they cannot say certain things about litigants, etc.). So why is Facebook different? Because of the word “Friend” that is applied to those who have to affirmatively be granted access? And because the very consideration of a request to access by the judge and the granting of that request is could lead to an impression of a preference over others? I mean, theoretically, a judge could make his or her profile completely available and open to everyone on Facebook — but they would still have “Friends”. In an open Facebook page, keeping “Friends” is not about access, but about “listening” to certain “Friends” status updates in the news feed and keeping an address book. This is no different than basically publishing which personal websites a judge visited to keep tabs on people in the “old days.”
I guess this is a long way of me saying that being “Friends” on Facebook does not mean you are “Friends” but that you have logged certain acquaintances in your address book and listen to the same stuff they’d have posted on their websites. I don’t imply any true “friendship” to it.
On the flip side, I can see that one of the purposes of social networking is to create an “in” crowd. But here’s my point: How is that any different than real life? Lawyers go and talk to judges all the time at dinners and events. What if all those were actually logged. To me, the logging is the only difference.
BTW – I guess in Florida you can’t have a “Connection” with a judge on LinkedIn?
