The Too Friendly Judge? Social Networks and the Bench
Gray, Cynthia, Judicature
Judicial ethics advisory opinions seldom "go viral," but a November 9, 2009 opinion about judges and social networking by the Floridajudicial Ethics Advisory Committee became the subject of numerous newspaper stories worldwide. The opinion advised judges not to add lawyers who may appear before them as "friends" or permit those lawyers to add them as their "friends," although it did not prohibit judges from being on social networks altogether or from "friending" lawyers and others who did not appear before them.1
The Florida Committee noted its concern that "listing lawyers who may appear before the judge as 'friends' on a judge's social networking page reasonably conveys to others the impression that these lawyer 'friends' are in a special position to influence the judge."
This is not lo say, of course, that simply because a lawyer is listed as a "friend" on a social networking site or because a lawyer is a friend of the judge, as the tenu friend is used in its traditional sense, means thai this lawyer is, in faci, in a special position to influence the judge. The issue, however, is not whether the lawyer actually is in a position to influence die judge, bul instead whether the proposed conduct, the identification of the lawyer as a "friend" on die social networking site, conveys the impression that the lawyer Ls in a posidon to influence the judge.
The Committee concluded that the identification in a public forum of a lawyer who may appear before the judge does convey the impression of influence and therefore is not permitted.
The opinion apparently got some push-back from dismayed Florida judges, several of whom proposed ways to get around the problems perceived by the Committee. (According to the Orlando Sentinel, many judges defriended lawyers, and a few stopped using Facebook and similar sites altogetiier after the opinion was issued.) One judge suggested to the committee drat the appearance problem could be solved if she placed a prominent disclaimer on her profile page stating the term "friend" should be interpreted to mean that the person is only an acquaintance of the judge, not a "friend" in the traditional sense. A second judge proposed adopting a policy of accepting all lawyers who request as "friends" and communicating that "the term 'friend' is, in the judge's opinion, a misnomer."
Although it "thoroughly and thoughtfully reconsidered" the issue, the Florida Committee rejected those suggestions and reaffirmed the original opinion.2 All Committee members agreed that "placing a disclaimer on the judge's social networking site uniquely defining the term 'friend'" for the judge's pages would not effectively dispel any otherwise impermissible message. The Committee also rejected the concept that "a judge can engage in unethical conduct so long as the judge announces at the time that the judge perceives the conduct to be ethical." The Committee did state that ajudge who is a member of a voluntary bar association is not required to "de-friend" lawyers who are also members on that organization's Facebook page and who use Facebook to communicate about the organization and other non-legal matters.3
Three members of the Florida Committee, however, filed a minority opinion on the issue whetherjudges may add lawyers who appear before them as their friends, arguing that the term "friend" on an internet social networking site does not mean a friend in the traditional sense and that even a traditional friendship without more is permissible. The minority contended:
The logical extension of the majority's opinion is that judges cannot be friends with any lawyer who appears before the judge since there is no discernable difference between a judge's friendship with an attorney on a social networking site and a judge having lunch with an attorney, playing tennis with an attorney, or engaging in a myriad of other activities with attorneys who appear before the judge. . . . The exclusivity and selectivity by the judge in choosing to spend time and enjoyment with some attorneys and not others is far more apparent than "friendship" Ln the social networking setting of the internet. …