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Ex Parte Contacts About a Case Between a Judge and a Lawyer Via Facebook:

Just as improper as through any other means. No surprise to most of us, I'd expect, but it apparently was to the judge.

Thanks to Victor Steinbok and Legal Blog Watch for the pointer.

Legal Ethicist:
Eugene,

I have to disagree with your suggestion that Judge Terry "friending" the lawyer for the husband, and then posting comments about the trial of trivial importance is "just as improper" as, say, confidential oral discussion about the case at a cocktail party.

The key, for me, is that once Judge Terry disclosed (very promptly) to counsel for the wife that he and the other lawyer had exchanged brief, basically joking, messages, counsel for the wife could immediately go on Facebook and see exactly what was said -- and could then respond, if needed, minimzing any prejudice to the case.

Actually, I was more troubled by the judge's having googled the wife, and looked around on her photography website, and making conclusions relevant to the case based on the website. Even though the conclusions turned out to be in favor of the wife, I doubt this is the sort of thing we want judges to be doing in an adversary-based system of justice.

In the end, however, I don't see either the Facebooking or the googling as a serious problem given that the judge didn't try to hide what he'd done, and in fact proactively and promptly disclosed his online activities.

Interesting episode, to say the least -- thanks for posting about it.
6.2.2009 8:21pm
David Schwartz (mail):
Even though the conclusions turned out to be in favor of the wife...
Considering the husband had no opportunity to rebut them, I don't see how this is a factor that mitigates the harm.

And I agree, Googling the litigant was worse than the ex parte communications.
6.2.2009 9:17pm
2cents (mail):
Small world. Judge Terry was a JAG assigned to my Brigade at Ft. Bragg about 6 years ago. Not that it adds much to the discussion, just surprised me.

FWIW, I agree that the consideration of matters not in evidence is more troubling to me.
6.2.2009 9:24pm
Jon Roland (mail) (www):
Most improper was that is was stupid. Everyone knows that ex parte communications need to be in secret, behind closed doors, in rooms swept for bugs, Why else are judges so worried about letting people in the courtroom with recording devices?
6.2.2009 9:27pm
zippypinhead:
Friending counsel on Facebook, while probably not the wisest move for a careful judge, isn't by itself any worse than being a member of the same country club and exchanging pleasantries with counsel over a drink at the 19th hole. In either case, you simply can't talk about the pending case, and for heaven's sake don't buy each other drinks (or whatever the social networking equivalent thereof happens to be)...

Secretly Googling a litigant's website - assuming it's relevant to an issue in the litigation - is fully as bad as secretly going to inspect the scene of the crime, or the intersection where the accident occurred. But if the judge had announced in advance on the record that he wanted to look at the wife's website and asked if either party objected, he would have been on solid ground, ethically.

This sort of reminds me of the way Judge Thomas Penfield Jackson approached extrajudicial handy-panky during the U.S. v. Microsoft proceedings. Jackson was a computer illiterate when he first drew the Microsoft cases after Stanley Sporkin was involuntarily recused by the D.C. Circuit. Early on Jackson announced on the record that he was going to have the District Court's IT department do a tutorial for him on how to get onto the World Wide Web via a browser, and how to install and uninstall software on a Windows PC. Nobody objected, and there was no harm/no foul.

But later on, during the trial on the merits, Jackson decided for some bizarre reason to have a series of extrajudicial, ex parte conversations in chambers with the press. His ex parte mid-trial musings ended up featured in a book while the case was on appeal. Very, very bad. A young appellate lawyer retained by the state plaintiffs -- a fellow named John Roberts who I heard went on to do some other thingies in the law -- was given the task of defending Jackson when the issue came before the D.C. Circuit en banc. He started his argument with the very wise phrase "I have no brief to defend [Judge Jackson's] decision to discuss the case..."
6.2.2009 10:10pm
ChrisTS (mail):
zippypinhead (God, I love writing that):

Don't you think there is at least some difference between happening to be members of the same club and 'friending' someone on FB? Suppose the judge decided to join the club because the laywer told him about the membership, and then they referenced the case while at the club. Would that be problematic at all?

That said, I agree that googling the woman is completely out of bounds. Are judges not to decide cases on the evidence and arguments presented in court?

The internet is a wonderful addition to our lives in many ways, but one would hope that people in professional roles would be more cautious than the average Jane.
6.2.2009 11:31pm
PatHMV (mail) (www):
I see no problem with "friending" the lawyer, in and of itself. Judges are allowed to have friends, even friends who are lawyers and appear before them. It would be unrealistic and, frankly, inhuman, to expect judges, after a decade or two of practicing law in a community, to suddenly stop accepting invitations to social gatherings, to drop the friends they had made among their fellow members of the bar.

Discussing the case, or exchanging obscure messages about the case, as was done here, is improper, though I think on the whole this misconduct is exceedingly mild, and the judge himself disclosed it all. My general belief is that disciplinary committees love going after the low-hanging fruit, which is to say minor violations by fundamentally honorable members of the bench and bar, because it's too hard to prove the real wrong-doing done by the real sleaze-bags.
6.2.2009 11:46pm
Jon Roland (mail) (www):
One of the first things I observed when I began spending time in courtrooms and among judges was the regular violation of the rule against ex parte communications. I even benefited from it myself in a few cases. That is when I learned it is connections more than law that rules in our courts, and started me down the road to become a reformer.

The odd thing is how so many persons trained in the law seem to be able to go through an entire career oblivious to the dark side of judicial misconduct. They come to accept as normal what is not supposed to be normal.
6.3.2009 10:39am

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