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You can be 'fans' of judges you appear before, you just can't be their 'friends': JEAC hands down social networking rules for judges.

If you ask a judge to "friend" you on Facebook and your request is ignored--or worse yet, you get "de-friended"--don't take it personally.

The Judicial Ethics Advisory Committee has ruled that judges may not permit lawyers who may appear before them to be identified as "friends" on the judge's social networking pages.

"The committee believes 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," the committee said November 17 in Opinion Number: 200920, noting that Canon 2B prohibits judges from lending the "prestige of judicial office to advance the private interests" of others.

The committee said the issue is not whether the lawyer actually is in a position to influence the judge, but instead whether the proposed conduct, 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 also cautioned that the opinion should not be interpreted to mean that judges are prohibited from identifying any person as a "friend" on social networking sites.

"Instead, it is limited to the facts presented by the inquiring judge, related to lawyers who may appear before the judge," the panel said. "Therefore, this opinion does not apply to the practice of listing as 'friends' persons other than lawyers, or to listing as 'friends' lawyers who do not appear before the judge, either because they do not practice in the judge's area or court or because the judge has listed them on the judge's recusal list so that their cases are not assigned to the judge."

The "friend" prohibition also does not prevent judges from using Facebook and other social networking sites in their election campaigns and allows lawyers who may practice before the judge to designate themselves as "fans" or supporters of the judge's candidacy.

"To the extent a social networking site permits a lawyer who may practice before a judge to designate himself or herself as a fan or supporter of the judge, this practice is not prohibited by Canon 2B, so long as the judge or committee controlling the site cannot accept or reject the lawyer's listing of himself or herself on the site," the committee said. "Because the judge or the campaign cannot accept or reject the listing of the fan on the campaign's social networking site, the listing of a lawyer's name does not convey the impression that the lawyer is in a special position to influence the judge."

The panel said the Code of Judicial Conduct does not address or restrict a judge's or campaign committee's method of communication but rather addresses its substance.

A judge's participation in a social networking site, however, must also conform to the limitations imposed by Canon 5A, which provides that judges shall conduct all of the judge's extra-judicial activities so that they do not:

* "Cast reasonable doubt on the judge's capacity to act impartially as a judge;

* Undermine the judge's independence, integrity, or impartiality;

* Demean the judicial office;

* Interfere with the proper performance of judicial duties;

* Lead to frequent disqualification of the judge; or

* Appear to a reasonable person to be coercive."

The Dissent

A minority of the committee concluded 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 opinion said.

The committee did note that there are many other subject matter Web sites which people with similar interests use to communicate with one another and judges may participate in without violating Canon 2B.

"Parents of students in a particular club or organization in a high school, for example, may register as a part of a parent group, with the names of all of the members of the group being visible to all of the other members," the panel said. "Similarly, persons with an interest in studying a particular subject, or members of a club, might be a part of a group on a Web site, with the names of the members visible to one another, or to the public at large. However, even if a judge is listed on one of these sites, and even if a lawyer who appears before the judge is also listed, Canon 2B is not implicated because the judge did not select the lawyer as a part of the group, nor have the right to approve or reject the lawyer's being listed in the group. The only message conveyed to a person viewing the Web site would be that both the judge and the lawyer both have children in the band, or are both interested in the study of a particular subject."

The committee said because the judge played no role in the selection of the lawyer whose name appears on the Web site, no impression is afforded to those who view the site that the lawyer is in a special position to influence the judge.

The Judicial Ethics Advisory Committee is expressly charged with rendering advisory opinions interpreting the application of the Code of Judicial Conduct to specific circumstances confronting or affecting a judge or judicial candidate. Its opinions are advisory to the inquiring party, to the Judicial Qualifications Commission, and the judiciary at large. Conduct that is consistent with an advisory opinion issued by the committee may be evidence of good faith on the part of the judge, but the JQC is not bound by the interpretive opinions by the committee.

By Mark D. Killian

Managing Editor
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Author:Killian, Mark D.
Publication:Florida Bar News
Date:Jan 1, 2010
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