Judge’s Use of Electronic Social Networking Media – ABA Formal Opinion 462:
“A judge may participate in electronic social networking, but as with all social relationships and contacts, a judge must comply with relevant provisions of the Code of Judicial Conduct and avoid any conduct that would undermine the judge’s independence, integrity, or impartiality, or create an appearance of impropriety.“
According to Formal Opinion 462 [PDF] of the American Bar Association, published on February 21, 2013. Surely, this formal opinion, which refers to Electronic Social Media (“ESM”), has been in the works for a long time. It is, however, at odds with a recent Florida decision I previously discussed. In that case a Florida appellate court held that a judge should have recused himself because he was a Facebook “friend” of an attorney appearing in the matter: Lawyers & Judges: Be Careful Who You Friend.
Domville v. State, — So.3d —-, 2012 WL 3826764 (Fla. App. 2012).
As indicated in that post, the Florida Supreme Court was going to take up the issue but with this recent opinion from the ABA, it may now be moot. I imagine the Florida Supreme Court will cite to this opinion and rely on the relevant Rules of Judicial Conduct in acknowledging that social media “relationships” are not problematic so long as they do not undermine or bring into question the judge’s appearance of impartiality.
The formal “Judge’s Use of Electronic Social Networking Media” Opinion will likely clear up this issue that has previously been addressed in piecemeal fashion by various state bar organizations.
Here are a couple of comments from the Opinion I found interesting:
- A judge who participates in ESM should be mindful of relevant provisions of the Model Code. For example, while sharing comments, photographs, and other information, a judge must keep in mind the requirements of Rule 1.2 that call upon the judge to act in a manner that promotes public confidence in the judiciary, as previously discussed.
- The judge should not form relationships with persons or organizations that may violate Rule 2.4(C) by conveying an impression that these persons or organizations are in a position to influence the judge.
- A judge who has an ESM connection with a lawyer or party who has a pending or impending matter before the court must evaluate that ESM connection to determine whether the judge should disclose the relationship prior to, or at the initial appearance of the person before the court.
- [However] Because of the open and casual nature of ESM communication, a judge will seldom have an affirmative duty to disclose an ESM connection.
- [But] a judge should disclose on the record information the judge believes the parties or their lawyers might reasonably consider relevant to a possible motion for disqualification even if the judge believes there is no basis for the disqualification.
The opinion goes on to discuss a judge’s use of social media in running a judicial campaign. I am adamantly opposed to judicial elections. So, if you live in a jurisdiction where you elect judges during election cycles or if you are a judge who has to campaign for your position, you can read the opinion to determine what you can and cannot do.
Free prize to anyone who sends me a transcript or an order / opinion that includes a judgment disclosing an ESM connection with one or more lawyers involved. I have numerous judges as social media friends. Maybe I can be the first!
Several months ago, I wrote about an interesting case in Florida; the post discussed a Florida appellate decision holding that a trial court judge should have recused himself because he was Facebook friends with the prosecutor. Summarizing from Lawyers & Judges: Be Careful Who You Friend:
In Domville v. State, — So.3d —-, 2012 WL 3826764 (Fla. App. 2012), the defendant moved to disqualify the trial court judge because of the judge and the prosecuting attorney were Facebook friends. Id. at *1 (“Petitioner Pierre Domville moved to disqualify the trial judge. The motion was supported by an affidavit averring that the prosecutor handling the case and the trial judge are Facebook ‘friends.’ This relationship caused Domville to believe that the judge could not ‘be fair and impartial.’”). The trial court denied the motion and Domville appealed.
The appellate court reversed the trial court and concluded that “[A] judge’s activity on a social networking site may undermine confidence in the judge’s neutrality. Judges must be vigilant in monitoring their public conduct so as to avoid situations that will compromise the appearance of impartiality.” Id. at *2. And since Domville had “alleged facts that would create in a reasonably prudent person a well-founded fear of not receiving a fair and impartial trial,” id., the appellate court reversed the trial court and disqualified the trial court judge.
According to the ABA Journal, Florida courts are now looking to the Florida Supreme Court for guidance on the issue. As noted in Should a judge recuse due to Facebook friendship with prosecutor? Florida supremes asked to decide:
A Florida appeals court wants guidance on an ethics issue: Should judges recuse from cases when they are Facebook friends with the prosecutor?
The 4th District Court of Appeal said on Wednesday that the matter is of great importance, and the Florida Supreme Court should decide the issue . . . .
It will be interesting to see how this case continues to develop. It is hard for me to imagine a world where judges must recuse themselves if they are Facebook friends with counsel. Most judges are former lawyers, worked for years with other lawyers, and continue to associate with lawyers. That a judge is a Facebook friend with another lawyer is no surprise at all. Personally, I am Facebook friends with several judges, most of whom were my “friends” before they took the bench. That we are “friends” says nothing (in my mind) about the judge’s ability to act impartially with respect to the matters before it. If we can be “friends” in real life, can’t we be friends on social networks?
The Florida Supreme Court should find that judges and lawyers can be Facebook friends without violating any ethical rules and that the “friendship” does not require recusal (absent additional factors).
As we enter Autumn, I suggest you take a look at my recent post on Avvo’s Lawyernomics blog. The title of the post is “NLRB: Time to Update Your Social Media Polices (Again?)” and it addresses new guidance from the National Labor Relations Board on social media policies. The field of social media policies is ever changing and employers need to stay abreast of these changes, particularly the issues identified by the NLRB.
Give the post a read and then go edit your social media policies (again)!
The Ninth Circuit Court of Appeals recently affirmed the Northern District of California’s approval of the $9.5 million settlement in the Lane, et al. v. Facebook, Inc., et al. litigation. For those who are unfamiliar with the case, the plaintiffs filed a putative class action claiming that Facebook’s Beacon program was causing the publication of private, “outside” web activities on the class members’ personal Facebook pages. As described by Wikipedia:
Beacon was a part of Facebook‘s advertisement system that sent data from external websites to Facebook, for the purpose of allowing targeted advertisements and allowing users to share their activities with their friends. Certain activities on partner sites were published to a user’s News Feed. Beacon was launched on November 6, 2007 with 44 partner websites. The controversial service, which became the target of a class action lawsuit, was shut down in September 2009. Mark Zuckerberg, CEO of Facebook, said on the Facebook Blog in November 2011 that Beacon was a “mistake”.
On appeal, the issue was “whether the district court abused its discretion in approving the parties’ $9.5 million settlement agreement as “fair, reasonable, and adequate,” either because a Facebook employee sits on the board of the organization distributing cy pres funds or because the settlement amount was too low. In a 2-1 decision, the Court of Appeals concluded:
Ultimately, we find little in Objectors’ opposition to the settlement agreement beyond general dissatisfaction with the outcome. That dissatisfaction may very well be legitimate insofar as Objectors would have acted differently had they assumed the role of class representatives. But while Objectors may vigorously disagree with the class representatives’ decision not to hold out for more than $9.5 million or insist on a particular recipient of cy pres funds, that disagreement does not require a reviewing court to undo the settling parties’ private agreement. The district court properly limited its substantive review of that agreement as necessary to determine that it was “fair, adequate, and free from collusion.”
The trial court’s approval of the settlement was quite controversial. The lawyers took home more than $2 million in fees and the named class plaintiffs received between $1,000 and $10,000 (the total amount paid to the named class plaintiffs was $39,000). The remaining funds from the $9.5 million was earmarked for a new privacy foundation that would be chaired by three individuals chosen by Facebook and class counsel. Although more than 50,000 complained about Beacon, the “class” received nothing from the settlement.
In what could be characterized as a scathing dissent, Judge Kleinfeld concluded:
The majority approves ratification of a class action settlement in which class members get no compensation at all. They do not get one cent. They do not get even an injunction against Facebook doing exactly the same thing to them again. Their purported lawyers get millions of dollars. Facebook gets a bar against any claims any of them might make for breach of their privacy rights. The most we could say for the cy pres award is that in exchange for giving up any claims they may have, the exposed Facebook users get the satisfaction of contributing to a charity to be funded by Facebook, partially controlled by Facebook, and advised by a legal team consisting of Facebook’s counsel and their own purported counsel whom they did not hire and have never met.
Facebook deprived its users of their privacy. And now they are deprived of a remedy.
So, does this end the Beacon litigation? I haven’t heard any comments from appellate counsel but, given the comments–bordering on outrage–in the dissent, I would not be surprised if appellate counsel seeks en banc review. Time will tell (the case was originally filed in August 2008 and it is possible that we will see it continue well into 2013 and possibly beyond).