This week's Daily Record column is entitled "Lawyers: Use your head when mining social media for evidence."
A pdf of the article can be found here and my past Daily Record articles can be accessed here.
Last week, Rochester criminal defense attorney Gary Muldoon was kind enough to bring to my attention an interesting Texas decision: Youkers v. State, 2013 WL 2077196. This is one of many recent cases addressing the issue of judges using social media and whether their social media connections and interactions affect the trials over which they preside.
In Youkers, the assault victim’s father happened to be Facebook friends with the judge presiding over Youkers’ trial and sent the judge a private message in which he requested a lenient sentence for Youkers.
The judge, upon realizing that the message was an improper ex parte communication, stopped reading the message, sent a reply message stating that the message was a violation of ex parte rules, notified both lawyers regarding the incident, placed a copy of the message in the court’s file, and contacted the judicial conduct commission to determine if any other steps needed to be taken. The judge did not recuse himself from the matter.
Youkers then brought a motion for a new trial based, in part, upon the allegation that the judge was unable to be impartial and should have recused himself due to his social media connection and his Facebook interactions with the victim’s father.
During a subsequent hearing on the motion, the judge testified that he was simply acquaintances with the victim’s father and knew him only because they had both run for office during the same election cycle. Aside from the one set of messages that they’d exchanged relating to the trial, there was no other contact on Facebook and he had never read posts on the victim’s father’s Facebook wall.
Based on this evidence, the Texas Court of Appeals concluded that the judge acted properly and was not required to recuse himself under the circumstances of this case:
“Merely designating someone as a ‘friend’ on Facebook ‘does not show the degree or intensity of a judge’s relationship with a person.’ ABA Op. 462 … Thus, the designation, standing alone, provides no insight into the nature of the relationship … A reasonable person in possession of all of the facts in this case likely would conclude the contact between the judge and the father did not cause the judge to abandon his judicial role of impartiality; besides the evidence that the judge and the father’s acquaintance was limited, any appearance of bias created by the Facebook communications was dismissed quickly by the judge’s handling of the situation.”
In reaching its decision, the court wisely adopted the majority opinion that judges are permitted to interact on social media, explaining that online interaction is simply an extension of offline relationships: “The general premise that judges are not prohibited from using social media is consistent with the current standards suggested by the American Bar Association, as well as recent articles addressing the topic … Allowing judges to use Facebook and other social media is also consistent with the premise that judges do not ‘forfeit [their] right to associate with [their] friends and acquaintances nor [are they] condemned to live the life of a hermit. In fact, such a regime would … lessen the effectiveness of the judicial officer.’ Comm. on Jud. Ethics, State Bar of Tex., Op. 39 (1978). Social websites are one way judges can remain active in the community.”
The bottom line: judges are people, too, and social media is here to stay. This court wisely accepted these realities rather than operating in a bubble of denial. All in all, this was a well thought out opinion that is in keeping with the conclusions reached by most jurisdictions which have addressed the issue of judges using social media sites.
Nicole Black is a Rochester, New York attorney and Director of Business Development and Community Relations at MyCase, an intuitive cloud-based law practice management platform for the modern law firm. She is also a GigaOM Pro Analyst and is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at firstname.lastname@example.org.