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A look at judges, Facebook and recusal

Stacked3This week's Daily Record column is entitled "A look at judges, Facebook and recusal."  My past Daily Record articles can be accessed here.

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A look at judges, Facebook and recusal

Judges are human. They have relationships, both professional and personal. Existing in a judicial vacuum that is devoid of relationships simply isn’t an option and doesn’t conform with reality. But sometimes when you read the ethics opinions that control the conduct of judges, you might wonder if that’s the case. In some cases, the opinions indicate that judges must avoid many typical professional relationships and friendships, all to avoid the appearance of impropriety or lack of impartiality.

 

This has especially been the case when it comes to social media and a number of judicial ethics committees have taken a rather strict approach when it comes to judges interacting on social media. See, for example, California Judicial Ethics Committee Opinion Number 66 (judges may “friend” attorneys, but must “unfriend” those who appear before them and after doing so, must notify all parties of the “unfriending”); Florida Supreme Court Judicial Ethics Advisory Opinion 2009-20 (judges may join and participate on Facebook, but becoming “friends” with attorneys who may appear before them is impermissible); and Pierre Domville v. State of Florida, No. 4D12-556 (required judge, who was Facebook “friends” with the prosecutor in a case pending before the judge, to recuse himself.)

 

In 2009 New York came down on the other side of the issue in 2009 Advisory Opinion 08-176. In that opinion, the New York Advisory Committee on Judicial Ethics concluded that it is generally permissible for judges to connect online with attorneys appearing before them, as long as the judges are careful to avoid the appearance of impropriety, avoid ex parte communications, and otherwise ensure compliance with applicable ethical rules.

 

In 2013, another opinion was issued in regard to judges and social media in New York that I have not yet written about. At issue in Opinion 13-39 was whether a judge “must, at the request of the defendant and/or, his/her attorney, exercise recusal in a criminal matter because (the judge is) ’Facebook friends’ with the parents or guardians of certain minors who allegedly were affected by the defendant’s conduct.”

 

The committee concluded that “the mere status of being a ‘Facebook friend,’ without more, is an insufficient basis to require recusal. Nor does the committee believe that a judge’s impartiality may reasonably be questioned (see 22 NYCRR 100.3[E][1]) or that there is an appearance of impropriety (see 22 NYCRR 100.2[A]) based solely on having previously ‘friended’ certain individuals who are now involved in some manner in a pending action.”

 

In reaching its decision, the committee explained that regardless of the nature of a specific relationship — whether on social media or otherwise — the burden rests with the judge to assess the relationship and their ethical obligations when it comes to the relationship. The committee stated that a judge “should be mindful of the appearance created when he/she establishes a connection with an attorney or anyone else appearing in the judge’s court through a social network … [and] must, therefore, consider whether any such online connections, alone or in combination with other facts, rise to the level of a … relationship requiring disclosure and/or recusal.”

 

Importantly, the committee noted that if the judge concluded that, in the case at hand, if the relationship with the defendant’s parents was only that of an acquaintance, then recusal was not required. But the committee advised that should a judge reach that decision and decide that recusal is unnecessary, that it would be wise to “make a record, such as a memorandum to the file, of the basis for your conclusion. This practice, although not mandatory, may be of practical assistance to you if similar circumstances arise in the future or if anyone later questions your decision.”


Nicole Black is a Rochester, New York attorney and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for the modern law firm. She is also 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.


NY judge holds service via Facebook permissible

Stacked3This week's Daily Record column is entitled "NY judge holds service via Facebook permissible."  My past Daily Record articles can be accessed here.

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NY judge holds service via Facebook permissible

 

Last October I wrote about two different U.S. judges who had issued orders permitting service upon litigants using Facebook. First, in February 2014, U.S. Magistrate judge for the Eastern District of Virginia, Thomas Rawles Jones Jr., issued an order to that effect in Whoshere, Inc., v. Gokhan Orun d/b/a/ WhoNear; Who Near; whonear.me, where the defendant was located in Turkey.

In the other case, a family court judge, Staten Island Support Magistrate Gregory Gliedman, permitted service on the plaintiff’s U.S.-based ex-wife via Facebook where the plaintiff had attempted to serve her using more traditional means and had failed because his ex-wife had moved from her prior address and had left no forwarding address.

Most recently, just a few weeks ago, another New York judge joined the pack by permitting service via Facebook in a matrimonial case, Baidoo v. Blood-Dzraku (2015 NY Slip Op 25096), where the plaintiff sought permission from the court to serve a divorce summon on her husband via his Facebook account. Ultimately, the court granted her request.

In reaching his decision, New York County Supreme Court Judge Matthew F. Cooper acknowledged the impact of social media on our culture: “The past decade has also seen the advent and ascendency of social media, with websites such as Facebook and Twitter occupying a central place in the lives of so many people … Thus, it would appear that the next frontier in the developing law of the service of process over the Internet is the use of social media sites as forums through which a summons can be delivered.”

He then considered the application in light of the plaintiff’s assertion that her husband, Victor Sena Blood-Dzraku, had lived separately from his wife for some time, had only recently been in touch with her by Facebook and telephone, and had refused to provide her with his home or work location or to otherwise make himself available for service.

Based on those factual allegations and after analyzing the applicable statutes and standards, Judge Cooper concluded that service via Facebook would be acceptable: “Under the circumstance presented here, service by Facebook, albeit novel and nontraditional, is the form of service that most comports with the constitutional standards of due process. Not only is it reasonably calculated to provide defendant with notice that he is being sued for divorce, but every indication is that it will achieve what should be the goal of every method of service: actually delivering the summons to him.”

In order to ensure that the defendant actually received notice of the divorce proceeding, the court required a very specific procedure be followed when serving him via Facebook: “(Plaintiff’s attorney shall log into plaintiff’s Facebook account and message the defendant by first identifying himself, and then including either a Web address of the summons or attaching an image of the summons.

This transmittal shall be repeated by plaintiff’s attorney to defendant once a week for three consecutive weeks or until acknowledged by the defendant. Additionally, after the initial transmittal, plaintiff and her attorney are to call and text message defendant to inform him that the summons for divorce has been sent to him via Facebook.”

So, once again, yet another judge weighs in and gives service via social media sites his blessing. Clearly service by this means won’t be appropriate in all situations, but it’s heartening to see judges who acknowledge the impact of social media and make efforts to understand how these sites work and how they can be used responsibly to forward the goals of our judicial system.

Nicole Black is a Rochester, New York attorney and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for the modern law firm. She is also 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.