Judges & Facebook Redux

In November, I posted Judges & their Facebook Friends.  

The post highlighted the Florida Supreme Court’s conclusion”that an allegation that a trial judge is a Facebook ‘friend’ with an attorney appearing before the judge, standing alone, does not constitute a legally sufficient basis for disqualification.”  I blogged that I agreed, but concluded with:

  • “Finally, remember: just like real-life relationships, a Facebook friendship or other social media connection might create an appearance that provides a basis to inquire further.  So maybe it’s best to avoid such connections.”

At the time, I didn’t think it necessary to add “for instance, a judge shouldn’t accept a FB friend request from a litigant a week after a contested hearing, but before the judge has issued a ruling.”  Seems obvious, right?  Apparently not to all.

Yesterday, Kevin Lumpkin tipped me off to this opinion from an appellate court in Wisconsin.  Besides being timely – the opinion only issued yesterday – Kevin is also a regular member of the #fiveforfriday Honor Roll in legal ethics.

Kevin – thanks for the tip!

Here’s what happened.

In 2011, Angela and Timothy stipulated to an order granting them joint legal custody of their child. In 2016, Angela moved to modify the order.  A hearing on the motion took place in June 2017.  Among other things, Angela argued that Timothy had physically abused her.  The judge allowed the parties 10 days to file post-hearing memoranda and took the matter under advisement.

The critical section of the timeline:

  • June 16: Angela and Timothy each filed post-hearing memos.
  • June 19: the judge accepted a Facebook friend request from Angela.
  • June 19-July 14: Angela “liked” 18 of the judge’s Facebook posts and commented on two of them.  She had also liked or shared multiple third-party posts related to domestic violence.
  • July 14: the judge issued his ruling.

The judge granted Angela’s motion.  He concluded that had established that Timothy’s pattern of domestic abuse was a substantial change in circumstances that warranted a modification of the order.

Angela’s Facebook friendship with the judge eventually came to light.  Timothy appealed, arguing that, at the very least, the e-relationship created an “appearance of partiality.”

The appellate court agreed that it had.  Indeed, given the facts peculiar to the case, the court saw no need to address when, exactly, a social media relationship requires disqualification. As they say, it was a no-brainer.  The court reversed and remanded the judge’s decision, and directed that a different judge consider Angela’s original motion.

I remain of the opinion that a social relationship, standing alone and whether electronic or “real life,” is not a sufficient basis to disqualify a lawyer from appearing before a judge.  I also remain of the opinion that such relationships merit further inquiry before proceeding.

But the Wisconsin case did not involve a pre-existing relationship.  Angela actively sought the judge’s electronic friendship while her motion remained pending! As the Wisconsin appellate court noted:

  • “First, the time when [the judge] and [Angela] became Facebook ‘friends’ would cause a reasonable person to question the judge’s partiality. Although [the judge] apparently had thousands of Facebook ‘friends,’ [Angela] was not simply one of the many people who ‘friended’ him prior to this litigation. Rather, [Angela] was a current litigant who reached out to [the judge] and requested to become his Facebook ‘friend’ after testifying at a contested hearing, at which [the judge] was the sole decision-maker. [The judge] then took the affirmative step to accept this ‘friend’ request before issuing his decision in this case.

Take social media out of it.  The result – an  appearance of partiality – is no different than if the judge had agreed to buy a ticket to a calcutta to raise money for Angela’s kid’s school trip.  Or accepted an invitation to join her gym.

As I blogged a few weeks ago, don’t fear tech.  Instead, use common sense.

Finally, the decision makes me wonder: does the duty of competence include advising clients NOT to forge social media relationships with judges while a matter is pending?

If you know the client intends to? Yes. Generally, probably not. But it’s worth keeping in mind.

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