Thursday, July 17, 2014

We Can Be Friends, Just Not On Facebook

By Kristen A. Foltz

Many practitioners use social media for advertising and to grow their practice. Unfortunately, there are some instances where being friends with someone on Facebook could have a detrimental effect on business. One such scenario involves being friends with members of the judiciary on Facebook. Most attorneys are aware of rules regarding ex parte communication with jurors (see Florida Rule of Professional Conduct 4-3.5(d)), but what about a judge? What happens if you went to law school with someone who is now a judge? What if he or she is a personal friend of yours? Can you be Facebook friends or connect via other electronic social media (ESM)? A recent case in Florida has been getting attention regarding this issue and suggests that judges may be better off being friendless (at least on Facebook).

In January, the Fifth District Court of Appeal evaluated a case where a woman sought to overturn the lower court’s ruling that denied her motion to disqualify the judge in her divorce case. Chace v. Loisel, 39 Fla. L. Weekly D 221, (Fla. 5th DCA Jan. 24, 2014). Prior to entry of final judgment in her divorce case, the petitioner, Sandra Chace, received a friend request from the presiding judge. She declined the friend request, and when final judgment was entered, Chace claimed she received most of the marital debt and the judge awarded her ex a large alimony award. Chace filed a motion to disqualify the judge as she felt the judge retaliated against her for denying the request. This motion to disqualify was ultimately denied. When she appealed the ruling, the Fifth District quashed the order denying Chace’s motion to disqualify, stating, “Petitioner has alleged facts that would create in a reasonably prudent person a well-founded fear of not receiving a fair and impartial trial.” Id.

The American Bar Association stated in its Formal Opinion 462, “All of a judge’s social contacts, however made and in whatever context, including ESM, are governed by the requirement that judges must at all times act in a manner ‘that promotes public confidence in the independence, integrity, and impartiality of the judiciary,’ and must ‘avoid impropriety and the appearance of impropriety.’” ABA Formal Opinion 462, Judge’s Use of Electronic Social Networking Media, (Feb. 21, 2013). In relying on the Model Code of Judicial Conduct, the ABA concludes, “[W]hile sharing comments, photographs, and other information, a judge must keep in mind the requirements of Rule 1.2 that call upon the judge to act in a manner that promotes public confidence in the judiciary.” Id.

This case reveals some of the potential issues that can arise out of ESM. Although it only discusses Facebook, people should be aware of the application to other ESM sites (e.g. Twitter, Instagram, etc.). It is a fine line to determine what could be perceived by another as improper. It may be a best practice to not risk putting a judge in a bad position by trying to avoid any appearance of impartiality, even if that means missing their next selfie or posting about what they ate for breakfast.