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A tale of judges, social media and boundaries

Stacked3This week's Daily Record column is entitled "A tale of judges, social media and boundaries." My past Daily Record articles can be accessed here.

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A tale of judges, social media and boundaries

Earlier this month I wrote about the problems encountered when judges ignore social media and  fail to understand the platforms, but nevertheless issue rulings related to the social media interactions of those appearing before them.

Today I discuss the other end of the spectrum — the small minority of judges who overzealously interact on social media platforms with little concern for the effects of their interaction. Case in point, a recent decision issued by the District Court of Appeal of Florida, Fifth District.

At issue in Chace v. Loisel, — So.3d —, 2014 WL 258620 (Fla.App. 5 Dist. Jan. 24) was whether the judge acted improperly when she “friended” a litigant who appeared before her in a matrimonial proceeding—while the case was still pending. This was apparently a common practice for this particular judge.

Now let’s stop right there. What in the world was this judge thinking? How she could have possibly thought that her actions were in any way ethical? When would it ever make sense to attempt to connect on social media — or otherwise — with parties to an action over which you were presiding? This is especially true for a judge located in Florida, a jurisdiction which is well known for its conservative views on the ethics of lawyers and judges using social media and other online technologies.

The conduct in this case was so clearly improper that I wasn’t at all surprised by the court’s conclusion that the petitioner’s motion to disqualify the judge should have been granted. The court explained: “It seems clear that a judge’s ex parte communication with a party presents a legally sufficient claim for disqualification, particularly in the case where the party’s failure to respond to a Facebook “friend” request creates a reasonable fear of offending the solicitor. The “friend” request placed the litigant between the proverbial rock and a hard place: either engage in improper ex parte communications with the judge presiding over the case or risk offending the judge by not accepting the “friend” request.”

As far as I’m concerned, that ruling was simply a foregone conclusion. But what really interested me about this case was the court’s dicta regarding another issue: whether judges should be permitted to “friend” attorneys who appear before them.

The court referred to a prior decision issued in Florida and one that I’ve written about — and disagreed with — in the past:

Domville v. State, 103 So.3d 184 (Fla. 4th DCA 2012), rev. denied, State v. Domville, 110 So.3d 441 (Fla.2013). In Domville, the court concluded that the judge’s Facebook “friendship” with the prosecutor in that case was improper and created the appearance of impropriety.

The court in the case at hand disagreed with the Domville’s court holding, explaining that the online medium does not change the nature of a professional connection that would otherwise be permissible to one that is somehow improper:

“We have serious reservations about the court’s rationale in Domville. The word ‘friend’ on Facebook is a term of art. A number of words or phrases could more aptly describe the concept, including acquaintance and, sometimes, virtual stranger. A Facebook friendship does not necessarily signify the existence of a close relationship. Other than the public nature of the Internet, there is no difference between a Facebook “friend” and any other friendship a judge might have. Domville’s logic would require disqualification in cases involving an acquaintance of a judge. Particularly in smaller counties, where everyone in the legal community knows each other, this requirement is unworkable and unnecessary. Requiring disqualification in such cases does not reflect the true nature of a Facebook friendship and casts a large net in an effort to catch a minnow … (T)he ‘friending” of a party in a pending case raises far more concern than a judge’s Facebook friendship with a lawyer.’”

Bravo, Fifth District Court of Appeal! Bravo! I couldn’t have said it better myself.

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 niki@mycase.com.