You can ask a judge to be friends on Facebook, just don’t do it if you have a pending case before them.
It won’t look good – and it might spark an ethics complaint or motion to recuse. The same goes for connections on LinkedIn, Twitter, Instagram and other social media.
A case in point: the Florida Supreme Court is considering a plaintiff’s petition to disqualify a trial judge for being friends on Facebook with defense counsel. Plaintiff argued the online relationship raised a “well-grounded fear of not receiving a fair and impartial trial.”
The high court agreed to take a look at an appellate panel decision that denied the petition. The appeals court said a Facebook friendship is not a real friendship – at least not real enough to warrant disqualification.
“Electronic social media is evolving at an exponential rate,” said the Third District Court of Appeal in a unanimous ruling. “Acceptance as a Facebook ‘friend’ may well once have given the impression of close friendship and affiliation. Currently, however, the degree of intimacy among Facebook ‘friends’ varies greatly.”
The appellate opinion should be required reading for anyone interested in the legal ethics of social media friendships.
“This decision brings much needed fresh air to an issue that has led some lawyers and judges greatly to overreact,” says New York University law professor Stepehen Gillers in this Miami Herald Article. “The word ‘friend’ has many meanings. “Recusal is justified only when the friendship is so close that the public would reasonably question whether the judge would be able to rule against the lawyer.”
Ethics Traps in Social Media
There are few hard-and-fast rules on appropriate interaction between bar and bench. For judges, some experts say the safest course is to steer clear of social media altogether.
“My own feeling is that it’s something that can only cause trouble,” says this ethics law professor at Nova Southeastern University. “I don’t see any upside in a judge having a social-media presence.”
Unlike many other states – where bench and bar click “like” buttons at their peril – North Carolina has provided some guidance on the matter.
In 2014 FEO 8, the State Bar said social media interactions between lawyers and judges should be evaluated the same way as personal interactions.
“In certain scenarios, a lawyer may accept a judge’s dinner invitation,” says the opinion. “Similarly, in certain scenarios, a lawyer may accept a LinkedIn invitation to connect from a judge.”
As with all things legal, though, the devil is in the details.
7 Tips For Avoiding Social Media Misery
Here are seven takeaways from 2014 FEO 8:
- Don’t use social media to say things online that you wouldn’t say in person. “[W]hile the lawyer has a matter pending before a judge, the lawyer may not use LinkedIn or any other form of social media to communicate with the judge about the pending matter,” the opinion states.
- Hold all RSVPs until the case is over. “If a lawyer receives an invitation to connect from a judge during the pendency of a matter before the judge, and the lawyer concludes that accepting the invitation will impair the lawyer’s compliance with these duties, the lawyer should not accept the judge’s invitation to connect until the matter is concluded. The lawyer may communicate to the judge the reason the lawyer did not accept the judge’s invitation. Such a communication with the judge is not a prohibited ex parte communication provided the communication does not include a discussion of the underlying legal matter.”
- What if the case is never over? Some attorneys appear before the same judges almost every day. They always have cases pending. In such situations, if they feel uncomfortable about a social media request, the safest course is to politely decline – or else call a State Bar counsel for further guidance.
- Don’t use social media to brag about your insider connections. Under Rule 8.4(e), it is professional misconduct to “state or imply an ability to influence improperly a government agency or official.”
- It’s okay to endorse a judge’s legal skills or write a recommendation on the judge’s profile page. With the same limitations as stated above.
- But it doesn’t work the other way. “Displaying an endorsement or recommendation from a judge on a lawyer’s profile page would create the appearance of judicial partiality and the lawyer must decline.”
- All social media is treated equally. 2014 SEO 8 applies to LinkedIn, Facebook, Twitter, Google+, Instagram, Myspace and “any social media application that allows public display of connections, endorsements, or recommendations between lawyers and judges.”
We get by with a little help from our friends. But social media has changed the rules on how far those friendships should extend.
- Miami Herald http://www.miamiherald.com/news/local/community/miami-dade/article168865087.html
- Law Office of Herrsein v. USAA http://www.3dca.flcourts.org/Opinions/3D17-1421.pdf
- NC State Bar https://www.ncbar.gov/for-lawyers/ethics/adopted-opinions/2014-formal-ethics-opinion-8/?opinionSearchTerm=facebook
Jay Reeves practiced law in North Carolina and South Carolina. During the course of his 35- year career, he has been a solo practitioner, corporate lawyer, legal editor, Legal Aid staff attorney and insurance risk manager. Today he helps lawyers and firms succeed through marketing, work-life balance and reclaiming passion for what they do. He is available for consultations, retreats and presentations (www.yourlawlife.com). Contact firstname.lastname@example.org or 919-619-2441 to learn how Jay can help your practice.