Original post written by Lauren Moak at the Delaware Employment Law Blog.
A recent decision by the Pennsylvania Court of Common Pleas seems to hold that a judge who is Facebook friends with a party in a matter before him must recuse himself as a matter of course; failure to do so, in this particular case, resulted in the judge’s decision being overturned. Does this mean that Pennsylvania judges will be subject to a new, lower standard for recusal?
On May 1, 2011, Pennsylvania State Representative Cherelle Parker was arrested for drunk driving. During a hearing in November 2011, the presiding judge, the Honorable Charles Hayden suppressed the testimony of the arresting officers, finding that, due to conflicting evidence, the officers’ testimony was “impossible” to believe.
After the Court issued its decision, the Attorney General became aware that Judge Hayden was Facebook “friends” with Representative Parker. Judge Hayden refused to recuse himself and the Attorney General appealed the case to the Pennsylvania Common Pleas Court. In January 2012, the Court issued an order reversing Judge Hayden’s ruling and ordering that he recuse himself from the case.
The basis for the Court’s order was its determination that Judge Hayden had abused his discretion by not recusing himself from the case, reports WHYY’s Newsworks. (Note: As of this post, we’ve been unable to locate a copy of the court’s order. Thus, our information is limited to the news reports. If you have a copy of the order, we’d appreciate having a look at it.)
This approach, however, seems likely to cause problems. Take this case for example: Judge Hayden has more than 1,500 Facebook “friends,” and Representative Parker has more than 4,500 Facebook “friends.” Moreover, Pennsylvania judges are elected, making them politicians of a sort. In this day and age, it is not unusual for politicians to have aids manage their social media accounts, especially when they are used for professional rather than personal purposes. Finally, most people with Facebook accounts will readily acknowledge that there is a real difference between a friend and a Facebook “friend.” Indeed, Representative Parker’s attorney asserts that she and Judge Hayden had no personal connection beyond their Facebook accounts.
Editor’s Comments by Molly DiBianca
Social-media activity by judges is an issue not likely to go away any time soon. Although many, if not most, judges do not use social-media sites like Facebook for personal use, it seems inevitable that this statistic will change and the number of judges who engage in social media will increase. This raises at least two questions. First, how, if at all, does the use of social media (and, particularly, social-networking sites), by judges affect their ability and/or perceived ability to remain impartial when an online “friend” is before them in the courtroom? Second, should bar associations opine about and/or take a formal position with respect to this question?
Ethics committees in at least five states have issued advisory opinions regarding online friending of attorneys by judges. All but one of the states to have addressed the question has come out on the side that friending an attorney who may appear in the judge’s courtroom is not, per se, impermissible, provided that the judge complies with the rules of ethics in all other respects, including impartiality. (Committees in Ohio South Carolina, and Noth Carolina have issued advisory opinions that permit judge-attorney friending; Florida’s ethics body concluded that such friendships were not appropriate).
But the story addressed in Lauren’s post, above, deals with a separate issue–specifically, whether the existence of a Facebook friendship between a judge and a party requires the judge recuse himself as a matter of course. Although the Pennyslvania court seems to have decided the answer to this query is “yes,” I am not convinced that it is quite that simple.
We would love to hear your thoughts on the issue–can a judge who is Facebook friends with a party (plaintiff or defendant) remain impartial or should he be required to recuse himself because of that online connection?
You are absolutely correct, Molly, when you note that “social-media activity by judges is an issue not likely to go away anytime soon.” Although the issue usually arises first in those states with contested judicial elections, the issue is one every state will eventually have to address as more and more younger lawyers comfortable with social media are being appointed to the bench. Even in Utah, which does not have contested judicial elections, we have several appellate court judges and dozens of trial judges who have Facebook or other social networking accounts. I chaired a Utah Judicial Council committee of judges, lawyers and court executives which studied the issue and recently issued a report. We identified several areas of potential ethical concerns when judges use social media and recommended the Utah Judicial Ethics Committee proactively issue some guidance for lawyers and judges as opposed to the normal process of developing opinions on a case-by-case basis. Our report, which is working its way through the judicial rerview process may be accessed at our committee web page. http://www.utcourts.gov/committees/social_media/. Regarding the Pennsylvania ruling, it is likely that no one on the Common Pleas Court has a Facebook account as anyone who does knows there is a big difference between a Facebook friend and a real life friend. Unfortunately, many appellate judges are digital dinosaurs and are fearful of the new communications platforms. Great post!
Randy:
Thanks for sharing this link–Utah seems to be significantly ahead of the rest of us on this issue! I definitely agree that education is the best prevention and it’s great that Utah is taking such a proactive approach.
There may be a “big” difference between a FaceBook friend and a real life friend but in litigation the appearance of impropriety to a non-friend is inevitable.
Charles:
I don’t disagree about the likelihood that a judge’s online “friendship” with a litigant may give rise to the appearance of impropriety. I think the question I’m struggling with, really, is whether the next generation of judges will be disqualified en masse as a result. I attended a seminar at a local high school recently, when the students were asked how many Facebook friends they have. The average student reported having more than 1,000 Facebook friends! And that’s just high school–I can’t imagine what that number will be by the time they graduate college or law school!
To me, this case is indicative of an underlying need for specific guidance on the issue from the states’ judidical ethics committees, as opposed to letting the law develop on a case-by-case basis at the expense of the court system and litigants, etc. Prior to this case, though, I was not inclined to think that such regulation would be necessary. This case has me leaning in the other direction.
Molly, I don’t think regulation is necessary. We already have a Code of Professional Responsibility or similar in every State. Judges have their Code of Judicial Conduct or similar in every State. Every Judge has to maintain a lifestyle very different from a practicing attorney in order to avoid recusal. When litigating I try to reduce things to the lowest common denominator. If I find out before or after trial that the Judge has an overt connection to a party I try looking at it from the client’s perspective and allow the client to make the call. All in all, I doubt that there are many Judges who would put much weight in maintaining FB friendships over avoiding recusals in their chosen profession.