Florida Judicial Ethics Advisory Opinion on Social Media: Accept or Deny? Deny

The Florida Judicial Ethics Advisory Committee issued JEAC Opinion 2009-20 on November 19, 2009, indicating that judges may not add lawyers who may appear before the judge as “friends” on a social networking site, nor may judges permit such lawyers to add the judges as their “friend”.

However, the Committee did not entirely ban judges from using social media tools. Judges may post comments and other materials on their social media pages as long as the materials do not otherwise violate the Code of Judicial Ethics.

So, if you are a Florida judge using Facebook the answer to invitations to connect from lawyer colleagues must be “deny.” Interesting decision that may have significant impact in the legal community as it relates to the use of social media tools by litigation lawyers.

For more analysis and thoughts on the topic check out the NYT article, For Judges on Facebook, Friendship Has Limits. Additional coverage and posts via the Mike Frisch at Legal Professional Blog, Ashby Jones of WSJ Legal Blog and Dan Macsai of Fast Company. Thanks to Denise Howell for the tweet tip about the recently issued opinion.

This is not the first look by judicial ethics committees at the evolving role of social media relationships between lawyers and judges. As reported by the ABA Journal back in June, a North Carolina judge was publicly reprimanded by the North Carolina Judicial Standards Committee for “friending” a lawyer in a pending case.

Following are the specific questions/answers the Florida Committee addressed in the Opinion.

Q: Whether a judge may post comments and other material on the judge’s page on a social networking site, if the publication of such material does not otherwise violate the Code of Judicial Conduct. ANSWER: Yes.
Whether a judge may add lawyers who may appear before the judge as “friends” on a social networking site, and permit such lawyers to add the judge as their “friend.” ANSWER: No.
Q: Whether a committee of responsible persons, which is conducting an election campaign on behalf of a judge’s candidacy, may post material on the committee’s page on a social networking site, if the publication of the material does not otherwise violate the Code of Judicial Conduct. ANSWER: Yes.
Q: Whether a committee of responsible persons, which is conducting an election campaign on behalf of a judge’s candidacy, may establish a social networking page which has an option for persons, including lawyers who may appear before the judge, to list themselves as “fans” or supporters of the judge’s candidacy, so long as the judge or committee does not control who is permitted to list himself or herself as a supporter. ANSWER: Yes.

UPDATE (12/14/09): Over the weekend Ernie Swenson tweeted (via @LALegalEthics) about a South Carolina Advisory Opinion (Opinion No. 17-2009) issued in October 2009 looking at the propriety of a magistrate judge being a member of a social networking site such as Facebook.

The facts presented to the Advisory Committed on Standards of Judicial Conduct by the magistrate judge were:

A magistrate judge has inquired as to the propriety of being a member of Facebook, a social networking site. The Magistrate is friends with several law enforcement officers and employees of the Magistrate’s office. The Magistrate is concerned about the possibility of an appearance of impropriety since the list of Facebook subscribers is vast.

The South Carolina Advisory Committee reached a less restrictive conclusion than the Florida Judicial Ethics Advisory Committee discussed above. The Committee reasoned that a judge “shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” The Committee continued by stating that “complete separation of a judge from extra-judicial activities is neither possible nor wise” and that a judge should nto become isolated from the community. The Committee found that allowing a magistrate to be a member of a social networking site allows the community to see how the judge commicates and gives the community a better understanding of the judge.

The Committee’s conclusion was the following:
A judge may be a member of Facebook and be friends with law enforcement officers and employees of the Magistrate as long as they do not discuss anything related to the judge’s position as magistrate.

Bob Ambrogi at Legal Blog Watch provides additional analysis and comparison of the South Carolina and Florida opinions. Bob points out a distinction between the two rulings in that one deals with the friending of “attorneys” by judges while the other deals with friending of “non-lawyers” (law enforcement officials and courtroom employees) by judges. He concludes by making this point:

The key difference between the two opinions is in who a judge may friend without calling into question the judge’s impartiality and integrity. A judge who friends courtroom employees provides no cause for concern, South Carolina says, but a judge who friends courtroom advocates does, Florida finds.