The Committee did not agree. Instead, it held that the relevant inquiry is not about the website or social-networking site or its purpose. Instead, the Committee determined that the process of selecting friends or connections “and the fact that the names of those friends or connections are then communicated “often, but not always, selectively to others that violates Canon 2B, because by doing so the judge conveys or permits others to convey the impression that they are in a special position to influence the judge.”

Massachusetts judges also may not be friends online with any attorney who may appear before the judge. (Op. No. 2011-6). So can judges in California, although that State’s opinion seems more qualified. (Formal Op. No. 66) (2011). Ethics opinions from Kentucky and Ohio reached a similarly qualified “yes.” (Op. JE-119) (Jan. 2010); (Op. 2010-7) (Dec. 2010).

Other States’ judicial-ethics committees have come out differently than the Florida committee. For example, Judges in South Carolina are not prohibited from being Facebook friends with law enforcement officers and employees who work for the judge, provided there is no discussion of anything related to the judge’s official duties. (Op. No. 17-2009) (Oct. 2009). Judges in New York also are permitted to participate in social-networking, provided the judge otherwise complies with the rules of ethics. (Op. 08-176) (Jan. 2009).

But, in a Pennsylvania decision rendered earlier this year, a court determined that a judge had abused his discretion by not recusing himself from a case in which he was Facebook friends with the defendant, a local politician.

And then there’s the example of the New York criminal judge who was transferred after some of the lawyers who appeared before him complained that the judge had sent them Facebook friend requests.

According to the Herald Tribune, Jock didn’t help himself at the hearing.  First, he showed up 9 minutes late. Then, he testified about how he came to make the request with a story that was, well, somewhat difficult to believe.  But the real kicker for the court was the bragging Jock did on Facebook after “successfully” getting himself out of jury duty.

Ordering Jock to serve three days in jail, the court was unequivocal about the seriousness of the posts, noting:

I cannot think of a more insidious threat to the erosion of democracy than citizens who do not care.

Well said, well said.

But this is the first time I’ve seen the twist that comes next.  The judge has charged Jock with a misdemeanor count of criminal contempt of court, setting a February 16 hearing.  Te reason for the change of heart?  Apparently, the judge has reason to believe that Jock sent the friend request intending to get out of jury duty.  According to the Herald-Tribune, Jock posted on Facebook about his excitement about the success of his efforts, writing:

Score . . . I got dismissed!! apparently they frown upon sending a friend request to the defendant… haha

Well, this is a new one for me. But not likely to be last incident of a juror using social media in an effort to be dismissed from jury duty.

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?

She wrote about the trial in detail, including her thoughts on witness testimony, the performance of the lawyers, and even the jury’s deliberations. When the lawyers found out about her blog, they asked the court for the opportunity to question jurors about whether they’d been aware of it and the extent that they’d been prejudiced by Bradshaw.  The court denied the motion. 

Metra has now appealed that decision to the state’s highest court, reports NBC Chicago.  The NBC Chicago website has a video featuring some of the more outrageous comments Bradshaw posted.

For this legal professionals who read this blog, I’ll point out a particularly excellent resource on social-media policies:  a Resource Packet for Developing Guidelines on Use of Social Media by Judicial Employees, published last year by the Judicial Conference Committee on Codes of Conduct.

The Packet includes a brief but substantive overview of some of the ethical issues arising from the use of social media by court employees, as well as a primer for those who looking for a fundamental understanding of the tools before moving to regulate those tools. 

The Packet also includes sample language for use when drafting a social-media policy for judicial employees, as well as where to find such policies already in place.

Like the rules of professional conduct, which apply to lawyers’ online activities, the Code of Conduct for Judicial Employees applies to all online activities, including social medial.  As explained in the Resource:

The advent of social media does not broaden ethical restrictions; rather, the existing Code extends to the use of social media. 

Although directed to judicial employees, the Resource contains valuable lessons for all legal professionals, as well as for employers generally.

For more, see the KDAF-TV report:

http://www.the33tv.com/news/kdaf-facebook-tarrant-county-juror-charged-story,0,1030750.story

May a lawyer offer a prize as an incentive to connect to the inquirer on social-networking sites?

Put differently, “is it ethical to try to win Facebook friends with bribes?”  Ok, so maybe “bribes” is too strong a word.  Or maybe not.  The Committee concluded that, provided that the prize being offered is not illegal, the Rules of Professional Conduct do not prohibit a lawyer from offering a prize to join his social network.  But, the opinion goes on, if the primary purpose of the offer is the retention of the lawyer, then the prize will constitute an “advertisement” and, as such, is subject to the rules governing lawyer advertising.  And, if the prize is an advertisement and is targeted to specific recipients, and pecuniary gain is a significant motive of the prize, it also will constitute a “solicitation” and will be subject to additional restrictions.

I suppose I would find this opinion more interesting if it wasn’t premised on the idea that there are lawyers who think it’s a good idea to try to win friends with prizes.   I humbly suggest that buying your friends is never an advisable strategy for any professional.

For examples of jury instructions that address the issue of jurors’ online activities, see the Social-Media Research Repository, which is linked at the top of this page.   You also may be interested in these previous posts:

U.K. Juror Sentenced to Jail for Facebook Contact with Defendant

Social Media in the Jury Box

Potential Juror Dismissed Because of Tweet

Jury Instructions on Social Media (and Google Earth!)

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