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]) 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 firstname.lastname@example.org.