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Friend or Foe, Part II: More on Social Networking in the Courtroom

In last month's column, I covered the ethical issues that arise when an attorney seeks to "friend," through a third party, an adverse witness or party on a social networking site. This month we continue with a further exploration of social networking in litigation, this time about judges and the lawyers who appear in front of them becoming "friends."

The quick answer, by the way, is, "No, they can't."

In its ordinary sense, the word "friend" connotes a relationship that would preclude many professional relationships, especially those that would be adversarial (such as in the example from last month), but also those that require some social distance and impartiality.

Many judges have Facebook pages. In several states now, bar and judiciary ethics committees have ruled that judges and attorneys who appear in front of them may not "friend" one another.

In April 2009 the North Carolina Judicial Standards Commission reprimanded a judge "for 'friending' a lawyer in a pending case, posting and reading messages about the litigation, and accessing the website of the opposing party." During a discussion in chambers, the judge and the lawyer for the husband in a child custody and support matter talked about Facebook and the fact that they were both users. The lawyer for the wife was present; she commented that she didn't know what Facebook was (she obviously didn't have teenage children) and didn't have time for it (fair enough--this is something many adult Facebook users need to seriously ask themselves).

After this chambers discussion, the judge and the husband's lawyer "friended" each other. After establishing this connection, the judge and the lawyer for the husband exchanged a few messages within the Facebook messaging system. The commission also reprimanded the judge for viewing the wife's Web site to see samples of her photography and read her poems. The judge's ex parte communications with one of the lawyers and his independent ex parte online research violated the North Carolina Code of Judicial Conduct. The reprimand can be found at http://www.aoc.state.nc.us/www/public/coa/jsc/publicreprimands/jsc08-234.pdf.

In the North Carolina case, the Facebook "friending" provided the platform for improper ex parte communications, but it was actually those communications that violated the canons.

The Florida Supreme Court more recently dealt squarely with the question of whether merely "friending" between a judge and lawyers appearing in front of that judge in and of itself violates judicial ethics. The answer was still yes but with a dissenting minority.

The majority on the committee believed "that listing lawyers who may appear before the judge as 'friends' on a judge's social networking page reasonably conveys to others the impression that these lawyer 'friends' are in a special position to influence the judge. This is not to say, of course, that simply because a lawyer is listed as a 'friend' on a social networking site or because a lawyer is a friend of the judge, as the term friend is used in its traditional sense, means that this lawyer is, in fact, in a special position to influence the judge. The issue, however, is not whether the lawyer actually is in a position to influence the judge, but instead whether ... the identification of the lawyer as a 'friend' on the social networking site, conveys the impression that the lawyer is in a position to influence the judge. The Committee concludes that such identification in a public forum of a lawyer who may appear before the judge does convey this impression and therefore is not permitted."

The committee's minority felt otherwise, and their view is also compelling: "The minority concludes that social networking sites have become so ubiquitous that the term 'friend' on these pages does not convey the same meaning that it did in the pre-Internet age; that today, the term 'friend' on social networking sites merely conveys the message that a person so identified is a contact or acquaintance; and that such an identification does not convey that a person is a 'friend' in the traditional sense, i.e., a person attached to another person by feelings of affection or personal regard. In this sense, the minority concludes that identification of a lawyer who may appear before a judge as a 'friend' on a social networking site does not convey the impression that the person is in a position to influence the judge and does not violate Canon 2B."

The minority has a point. As used on Facebook, the word "friend" is stretched well beyond its ordinary meaning. Many people have Facebook "friends" that they'd never recognize on the street and with whom they may never have had any direct communication beyond the friend request and reply. Many Facebook friends are nothing more than tokens on a user's page.

The Florida ruling can be found at http://www.jud6.org/LegalCommunity/LegalPractice/opinions/jeacopinions/2009/2009-20.html

Active in e-discovery since the mid-1990s, Cliff Shnier is an attorney and electronic discovery consultant based in Scottsdale, Arizona. He has owned a service bureau and has held senior roles with national e-discovery providers. A graduate of the University of Toronto Faculty of Law, Cliff actively practiced as a commercial litigator for 11 years. Contact him at cliff@cliffshnier.com.

Clifford F. Shnier

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