The Florida Judicial Ethics Committee has issued an opinion forbidding judges to be Facebook “friends” with lawyers who may appear before them:
Judges and lawyers in Florida can no longer be Facebook friends.
In a recent opinion, the state’s Judicial Ethics Advisory Committee decided it was time to set limits on judicial behavior online. When judges “friend” lawyers who may appear before them, the committee said, it creates the appearance of a conflict of interest, since it “reasonably conveys to others the impression that these lawyer ‘friends’ are in a special position to influence the judge.”
In practice, of course, actual friends and Facebook friends can be as different as leather and pleather, and the committee did recognize that online friends were not the same as friends in the traditional sense. A minority of the panel would have allowed Facebook friendship, which it characterized as more like “a contact or acquaintance” without conveying the notion of “feelings of affection or personal regard.”
But the committee’s majority concluded that the possibility of the appearance of impropriety required that they recommend against friending, said Judge T. Michael Jones of the First Judicial Circuit Court, a committee member. He emphasized that the committee’s role was advisory, and that the opinion “does not have the force of a Supreme Court opinion” in Florida.
The opinion itself is available here.
At first glance, it might seem as if the opinion reflects a generational divide. The older members of the Committee may simply not understand how Facebook and other social networking sites work, and therefore don’t realize that a Facebook “friendship” doesn’t necessarily signal any kind of close relationship. Indeed, many Facebook friends don’t know each other in the real world at all. Only those ignorant of the way these sites function would assume that a Facebook friend is likely to be “in a special position to influence the judge.”
The problem goes deeper than that, however. As far as I know, both Florida and most other states don’t forbid judges to be real-world friends with lawyers who may appear before them. A judge who shows favoritism to a lawyer who is a personal friend may be sanctioned, as notorious federal district Judge Samuel B. Kent was (Kent was later forced to resign because of unrelated criminal charges). But the mere existence of a friendship between lawyer and judge is not considered to be a violation of judicial ethics in and of itself. So the Florida Committee’s approach actually treats Facebook friendship between lawyers and judges as a more serious breach of judicial etiquette than a genuinely close friendship between the two. I could understand the logic of a rule that forbade all social fraternization between judges and lawyers who might appear before them. Such a rule would be unduly harsh. Yet it would at least be consistent. But I can’t understand the justification for a rule that bans essentially innocuous Facebook “friendships” but turns a blind eye to real friendships.
UPDATE: I discussed the related issue of Facebook friendships between professors and students here and here. My general policy is that I accept “friend” requests from students, but do not initiate them, so that students will not feel pressured to reveal personal information to me. I don’t worry that people will think that I am somehow favoring students who are Facebook “friends,” because most interested observers will understand that Facebook friendship is not actually any kind of genuinely close relationship.
Steve says:
So the Florida Committee’s approach actually treats Facebook friendship between lawyers and judges as a more serious breach of judicial etiquette than a genuinely close friendship between the two.
I think the committee explained it quite well in the excerpt you quote. It’s not the friendship per se that presents a problem, it’s the publicizing of the friendship.
As a general matter, it would be unethical for a lawyer to communicate to the public that he enjoys a personal friendship with a given judge. It’s ok to play golf with the judge (because, among other things, a rule banning friendship is unworkable), but it’s not ok to go around telling potential clients that you play golf with the judge.
It’s true, of course, that Facebook friendship does not necessarily imply actual friendship as opposed to mere acquaintance. But I think the Committee is right to look at how it would reasonably be perceived by the public. I suspect it’s also germane to the analysis that abstaining from lawyer/judge Facebook friendships imposes little cost on the individuals involved, as opposed to a rule against real-world friendships.
December 15, 2009, 12:20 amIlya Somin says:
I think the committee explained it quite well in the excerpt you quote. It’s not the friendship per se that presents a problem, it’s the publicizing of the friendship.
I don’t see why that’s a problem. If anything, a public friendship is less likely to be dangerous than a hidden one, where any favoritism is less likely to be detected.
It’s true, of course, that Facebook friendship does not necessarily imply actual friendship as opposed to mere acquaintance. But I think the Committee is right to look at how it would reasonably be perceived by the public.
Members of the public who use Facebook are unlikely to confuse Facebook friendship with real friendship or with a genuine ability to improperly “influence” the judge.
December 15, 2009, 12:31 amGuy says:
I don’t know that this rule makes a whole lot of sense, (it seems a little silly to me) but I don’t see much room for harsh criticism, as it shows an abundance of caution. I don’t think judges being told they shouldn’t have lawyers appearing before them as Facebook friends is really a serious burden.
December 15, 2009, 12:46 amSoronel Haetir says:
I say we put judges in a lead lined box after they are put in office. No transmission in or out from the box. They are released for a few hours at a time when they have work to do.
December 15, 2009, 1:05 amRandy says:
ILya: “Members of the public who use Facebook are unlikely to confuse Facebook friendship with real friendship or with a genuine ability to improperly “influence” the judge.”
That may be true for some people, but isn’t necessarily true for all Facebook users. Some users do in fact save it for real friends, and you really can’t tell which are which. Although, if a person have several thousand ‘friends’, they probably aren’t really personal friends. But even in that case, there are undoubtedly some real friends among the thousands. The average lurker, however, isn’t able to determine which friends are real and which are virtual.
December 15, 2009, 1:07 amCornellian says:
I wonder if a judge could forestall problems by issuing some kind of policy that any member of the bar of his court will automatically be “friended” upon request. Since every lawyer has equal access under that policy, there so be no perception of favoritism even if many lawyers won’t bother to take him up on it.
December 15, 2009, 3:04 amWayne says:
The Florida Bar is very conservative regarding technology and advertising. The bar has very strict advertising rules. If it could ban all advertising it would. But since it can’t, it has rules that are as restrictive as possible. Ads have to be approved in advance. The Florida Supreme Court recently imposed very restrictive rules on lawyer’s web sites, as well. So it is not surprising that it is also hostile to Facebook.
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December 15, 2009, 4:52 amAbdul says:
I work in federal employment law and last year, someone brought a case to our office claiming that a hiring decision had been illegally manipulated.
Her proof? The boss was “Facebook friends” with the person who got the job.
As you might guess, we ended up turning that case down for lack of evidence.
December 15, 2009, 7:12 amRobert Bloomfield says:
This analysis doesn’t go nearly far enough. Can lawyers and judges be ‘connected’ on linked in? (“How do you know John?” “We worked together — I fined him for contempt.”) Can a judge follow a lawyer on twitter, or vice versa? Can the judge and the lawyer be in the same guild on World of Warcraft? Inquiring minds need to know.
December 15, 2009, 7:30 amAnderson says:
It’s not the friendship per se that presents a problem, it’s the publicizing of the friendship.
Bingo. Though Prof. Somin points to a deeper truth. If friendships were on Facebook and objectively verifiable, they would become routine exhibits to recusal motions, making recusals more common, perhaps much more so.
Judges prefer a cloud of deniability when convenient. Hence the Florida ruling.
December 15, 2009, 7:46 amAnderson says:
Oh, and I like Cornellian’s suggestion. Esp. since I figured out how to use “Hide” the other day.
December 15, 2009, 7:48 amMe says:
Silly me – I was waiting for the day the courts could use something like facebook to let us know ASAP about scheduling changes, etc. Heaven forbid we actually do anything efficiently.
December 15, 2009, 9:38 amkumquat says:
MMO guilds are probably safe, if the standard is public appearance; who’s going to know that Freibob the gnome and Drizzt1257 the night elf are actually Judge X and Trial Lawyer Y?
December 15, 2009, 11:14 amdarelf says:
I only have “friends” on Facebook that I have met personally in real life. I don’t just accept friend requests. I am not old. I’m just cautious. ( In fact, there are people have have sent requests that I have met personally and I still ignore them. Some people I’m just not friendly with )
December 15, 2009, 11:18 amADF Alliance Alert » Florida Judicial Ethics Advisory Committee Forbids Facebook “Friendships” Between Judges and Lawyers says:
[...] Somin comments on the ruling at the Volokh Cospiracy. “The opinion itself is [...]
December 15, 2009, 11:51 amGranite26 says:
I’d attribute this to a desire for the appearence of propriety.
Note that the ‘Friendship’ can be published beyond Facebook. Stranger things have happened than a small town journalist drumming up public discontent among a technically unsavy populous. (This is doubly true given the correlation between ‘lack of tech savy’ and ‘likelyhood to be arrested’)
I think that once the technology settles in to be more mainstream (nobody would complain about lawyers and judges having each other’s business numbers in rolodexes)
Note that it’s specifically labeled as advice. They saw it as potentially appearing as an impropriety and put out a warning.
December 15, 2009, 12:24 pmBama 1L says:
I think FJEC is taking facebook’s choice of “friend” rather than “contact” or “connection” or some absurd neologism way too seriously.
And I say this as someone who limits my facebook friends to people I have actually met.
December 15, 2009, 1:57 pmScott S. says:
At first glance, it might seem as if the opinion reflects a generational divide. The older members of the Committee may simply not understand how Facebook and other social networking sites work, and therefore don’t realize that a Facebook “friendship” doesn’t necessarily signal any kind of close relationship.
As a member of the younger generation (sort of at least), I don’t agree with this statement. Facebook friendship allows access to someone’s inner life, photographs of vacations, diary-type thoughts posted on the wall, comments of other friends made on wall posts. I understand it is all “public” in a sense but Facebook includes friends of all sorts and there are tremendous amount of personal information on each person’s page. Facebook is also about publicizing friendship (as others have mentioned) and it is a status symbol as to how many and who appears in your friend list.
I would also be a fan of an ethical rule that forbids judges from hearing cases in which close friends appear before them, for what it’s worth. Not sure how practical that would be in small towns though.
December 15, 2009, 2:12 pmBZ says:
Some observers have an unrealistic view of judges and friends. Certainly judges make and retain friends IRL, but their status, once known, changes those relationships. Years ago, I visited a friend who had been appointed a Court of Appeals judge and asked him how he liked it. “It’s strange,” he replied. “My phone just stopped ringing.” And, of course, we have all seen judges who are partial to their friends, even if it is only a question of access and priorities. Try going up against the President of the local bar association.
As Steve pointed out above, the question is perceptions, not only by the public, but by the judges and the lawyers involved. Why is it that a lawyer would want to view and write on a judge’s wall?
December 15, 2009, 3:05 pmJeff Walden says:
What happens if the Facebook friendship preceded the judgeship and/or the lawyership? Are you supposed to un-friend? (Apologies if I skimmed too hastily and missed discussion distinguishing this scenario from others.) This policy seems a little bizarre but not entirely unreasonable, but if it has to reach backwards in time I think it goes a step too far.
December 15, 2009, 3:16 pmIlya Somin says:
I don’t agree with this statement. Facebook friendship allows access to someone’s inner life, photographs of vacations, diary-type thoughts posted on the wall, comments of other friends made on wall posts. I understand it is all “public” in a sense but Facebook includes friends of all sorts and there are tremendous amount of personal information on each person’s page.
Actually, this varies a lot from FB page to FB page. Many people put up only relatively impersonal information that they wouldn’t mind letting a casual acquiantance or even a complete stranger see. Probably only a small minority put up information so private that only genuinely intimate friends are allowed to see it. Even for those judges who only “friend” genuinely close friends on FB, the real problem is still not the Facebook relationship but the real-life friendship that it represents.
December 16, 2009, 12:45 amFacebooking in Florida « Judicial Ethics Forum says:
[...] judges “friending” attorneys on Facebook. Prof. Somin’s commentary can be found here (at the Volokh Conspiracy); and the full text of the judicial ethics opinion can be found here. [...]
December 16, 2009, 2:49 am