Round Up: Cybersecurity, Dictation Tools, and Law Firm Disaster Planning
North Carolina on the ethics of mining social media for evidence

ABA Ethics Opinion On Judges, Social Media, Friendships, and Disqualification

Stacked3Here is a recent Daily Record column. My past Daily Record articles can be accessed here.

*****

Judges are supposed to be neutral arbiters. Unfortunately, in the real world, that’s sometimes easier said than done.

Ideally, judges would have no connection to the parties and lawyers appearing before them, and thus would be fully impartial. Judges, however, are human. They have close personal relationships, friendships, and many acquaintances. Judges are also lawyers, and as a result, they often personally know the lawyers appearing in their courtrooms. Those relationships are not supposed to affect the their rulings, but if there is the potential that they might, judges are required to disqualify themselves.

A simple concept in theory, but one that isn’t nearly as clear cut in practice. Determining which relationships conflict with the appearance of impartiality is rarely an easy feat. Not surprisingly, the advent of social media connections to our social infrastructure have added a new layer of complexity that some have suggested necessarily complicates this determination.

That’s why many courts and ethics committees have begun to consider the issue of whether judges’ social media connections with the lawyers appearing before them warrant disqualification. For example in 2012, Florida’s Fourth District Court of Appeal addressed this issue in Pierre Domville v. State of Florida, No. 4D12-556 and disqualified a judge from overseeing a case because the judge was Facebook “friends” with the prosecuting attorney.

Then in 2018, the Third District Court of Appeal in Florida addressed the very same issue in Law Offices of Herssein and Herssein v. United States Automobile Association, No. 3D17-1421, but reached a different conclusion and declined to disqualify a judge as a result of his Facebook connection with an attorney appearing in his court, since online friends are “not necessarily (friends) in the traditional sense of the word.” Later that same year, the Supreme Court of Florida considered this case on appeal in Herssein and Herssein v. United States Automobile Association, No. SC17-1848 and upheld this ruling, concluding that a Facebook friendship between a judge and an attorney appearing before that judge was not, in and of itself, a sufficient basis for disqualification of the judge.

That approach makes the most sense. After all, a social media connection is simply one piece of the puzzle, and only serves as evidence of some sort of social connection or relationship. For that reason, I was heartened to read a footnote echoing this sentiment in a recent ABA ethics opinion.

In Formal Opinion 488, the Standing Committee on Ethics and Professional Responsibility considered the issue of whether and when the social or close personal relationships of a judge warrant disqualification. The Committee concluded that in making this determination the disqualification inquiry must focus on assessing the nature and quality of a judge’s relationship with the attorney in question.

Notably, in footnote 11, the Committee acknowledged that when reviewing a judge’s friendship with a lawyer, a social media connection alone is not dispositive:

“Social media, which is simply a form of communication, uses terminology that is distinct from that used in this opinion. Interaction on social media does not itself indicate the type of relationships participants have with one another either generally or for purposes of this opinion. For example, Facebook uses the term “friend,” but that is simply a title employed in that context. A judge could have Facebook “friends” or other social media contacts who are acquaintances, friends, or in some sort of close personal relationship with the judge. The proper characterization of a person’s relationship with a judge depends on the definitions and examples used in this opinion.”

In regard to the issue of whether disqualification is required when a judge has a social connection or close personal relationship with an attorney, the Committee provided the following guidance: “(J)udges need not disqualify themselves if a lawyer or party is an acquaintance, nor must they disclose acquaintanceships to the other lawyers or parties. Whether judges must disqualify themselves when a party or lawyer is a friend or shares a close personal relationship with the judge or should instead take the lesser step of disclosing the friendship or close personal relationship to the other lawyers and parties, depends on the circumstances. Judges’ disqualification in any of these situations may be waived in accordance and compliance with Rule 2.11(C) of the Model Code.”

In other words, relationships - including those of judges - are necessarily more complex than a single online connection. Whether disqualification is appropriate in any given case depends on the nature and extent of the relationship. A social media connection is simply one factor to consider. To conclude otherwise would fly in the face of reality and the true nature of human relationships. After all, social media connections, while relevant to this determination, do not a relationship make.

Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase  law practice management software for small law firms. She 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 Thomson Reuters treatise. She writes legal technology columns for Above the Law and ABA Journal and speaks regularly at conferences regarding the intersection of law and technology. You can follow her on Twitter at @nikiblack or email her at niki.black@mycase.com.