A court ruling in the sunshine state last week sent a warning to judges who want to have social media relationships like everyone else. The message: when it comes to friending lawyers, "Just say no.?
The ruling stems from a case in which a judge and a prosecutor were friends on Facebook and, as Richard Shane and Jose Ferrer of law firm Bilzin Sumberg explain:
?? [the] criminal defendant moved to disqualify the trial judge whom the defendant alleged was a Facebook friend of the prosecutor assigned to the case. The defendant supported his motion with an affidavit averring that this ?Facebook relationship? caused the defendant to believe that the judge could not ?be fair and impartial.??
The trial judge, perhaps not surprisingly, disagreed and denied the motion. The defendant, Pierre Domville, appealed the ruling to Florida?s Fourth District Court of Appeal, where he found a sympathetic ear.
As it happens, Florida has a judicial ethics rule forbidding judges to become Facebook friends with lawyers who may appear before them, and it became the basis for the appeals court?s decision. Again, Shane and Ferrer:
?On appeal, the Domville court quashed the trial court?s order denying disqualification of the trial judge and, in so doing, gave the Advisory Committee?s opinion much credence: ?as the [Advisory] Committee recognized, a judge?s activity on a social networking site may undermine confidence in the judge?s neutrality.? The Advisory Committee further admonished this practice because ?the identification of the lawyer as a ?friend? on [a] social networking site [improperly] conveys the impression that the lawyer is in a position to influence the judge.??
Venkat Balasubramani, writing on Eric Goldman?s Technology & Marketing Law Blog, wonders how the judge?s Facebook relationship with the prosecutor differs from other, offline, relationships:
?? I'm still struggling to see how this is different from other forms of social interaction between lawyers and judges. Social interaction between judges and lawyers happens all the time and is not a basis for disqualification. I think there may be a bit of Facebook exceptionalism going on here.?
All the same, writes Balasubramani, the defendant?s motion isn?t particularly surprising. But the appropriate response is to handle Facebook friendships the same way as judges treat their other personal and professional relationships:
?[T]his type of a challenge is inevitable. Maybe it's curable by some sort of disclosure or policy promulgated by the judge. An alternative is to just keep Facebook friendship not visible (something Facebook's privacy settings now allow), and treat it like golf outings, or other social activities by the judge. Probably not worthy of disqualification, but something a judge may disclose in the interest of full disclosure.?
Judicial friending on Facebook isn?t the only way social media is making its way into the courtroom, however. Social networking posts are increasing being used as evidence in trials, and juror use of social media continues to create havoc for judges, prosecutors, and defendants alike as they struggle to understand and sort out the repercussions of jurors who tweet, Google, and Facebook from the jury box.
For now, there are most questions than answers (and it may be that way for a while). In the meantime, one thing is clear: Florida judges should just say ?no? when those friend requests come in.
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Links
Further Reading
Social Media as Evidence:
Juror Use of Social Media:
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