EQ Quick Hits Mid-Week

A few things to think about mid-week:

1. OK. We are all aware of the recession, and it has hit some more than others. But state judges in New York have n0t had a pay raise in 10 years. And now, the Commission on Judicial Conduct censured a judge from an upstate county for “openly declaring in mass e-mail messages to other judges that refusing to handle certain kinds of cases was ‘a tactic’ and ‘a weapon’ that could help pry a pay increase out of ‘those clowns’ in Albany.” The New York Times has the story on this interesting attempt at a pay raise here.
2. I recently heard from one of the commissioners for the Maryland Attorney Grievance Commission. He told me that their Bar Counsel of 31 years, Mel Hirshman, is retiring. Ergo, they are looking for someone new. Interested people can learn more here about the opening here. Or, if you just want to lean more about the Maryland Attorney Grievance Commission, you can go here.
3. That’s right. It’s only six days in the new year (including a holiday and a weekend), and we already have our first Facebook post! You can see the full story here at law.com, but it looks like a judge in Georgia (known as Bucky Woods) has retired after a 17-year career when it became public that he was in a Facebook relationship with a woman who was a defendant in a matter pending before his court. Seriously. Two obvious lessons here: (1) if you run across a party in litigation on Facebook, you should consider avoiding a relationship with that person (regardless whether you are a lawyer or the judge in the case); and (2) hire a lawyer right away. On this last point, consider the following passage from the article:

Woods said he didn’t want to discuss the e-mails, which he said were “obviously fake.” Upon further questioning, Woods said, “some were real and some were fake.” But he did not say which ones were fake.

Hmmm.

Facebook-ing – Do You Consider Judges Your Friends?

A few months ago, I posted a query regarding whether technology was creating reduced expectations of privacy. The post noted in passing that the Florida Board of Bar Examiners may want to look at your Facebook page.

Florida is again dealing with social networking sites, and the Judicial Ethics Committee has now opined in Opinion 2009-20 that, among other things, a judge may not add lawyers who appear before the judge as “friends” on a social networking site and may not allow lawyers to add the judge as their “friend”. The Opinion concludes:

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.

I’m still considering my position on this issue and I can definitely understand the logic behind the conclusion (and, in an article over at FindLaw, Anita Ramasastry argues that Florida’s ban on Judges’ “friending” lawyers on Facebook is the “right call”), but I am struggling with how far this analysis can reach. I doubt the Committee would want to argue that a judge couldn’t describe a lawyer who appeared in front of him as a “friend” in a social setting.

And there’s the rub. I may not Facebook but almost everyone I know does. And if that many people are using Facebook, isn’t there an argument that social networking is so ubiquitous that no one would understand a “friending” as something that conveys a special meaning? In other words, people who Facebook seem to be friends with almost anyone who asks to be a friend — so I’m not sure how that could convey an impression that those lawyer “friends” are in a special position to influence the judge.

As an example: I was at dinner the other night, and we began discussing Facebook with a nonlawyer. She told me that she had over “300 friends” on Facebook — some from high school, college, everywhere. Could one argue that being her Facebook friend really conveys a special position to influence her? Not the way she spoke about it.

And it’s notable that the Committee wasn’t unanimous either:

A minority of the committee would answer all the inquiring judge’s questions in the affirmative. The minority believes that the listing of lawyers who may appear before the judge as “friends” on a judge’s social networking page does not reasonably convey to others the impression that these lawyers are in a special position to influence the judge. 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.

Lastly, not sure how relevant this is to the post, but I just have to urge you to check out the social-networking hypothetical over at the Legal Ethics Forum, which deals with jurors wanting to date lawyers.

You can find the four questions posed by the Committee after the jump:

Read the rest of this entry »

Capterton v. Massey: Juxtaposing the Campaign Finance and Legal Ethics Worlds

There was enough in the blogosphere about the Supreme Court’s recent decision in the Massey Coal case, that I wasn’t in a hurry to post something about it. But I received a different take late last week from my partner, Roy Pulvers, whose practice includes a component of campaign finance and other “political” matters (in addition to his ethics practice).

He sent me (and others) a very interesting post by Bob Bauer, from his blog:  “More Soft Money Hard Law.” The post is titled, “Kennedy’s Problem in Caperton v. Massey and the Unfortunate Solution He Chose.” Roy’s quote to me says it all: “It is always fascinating to see how different perspectives, in this instance the perspective of the campaign finance world, intersect with other areas like legal ethics.”

[Thanks Roy!]

Early Week EQs

A few thoughts to begin the week:

1. Acknowledging a risk of bias? A number of Supreme Court justices withdrew or quit private clubs this year after Congress passed a law prohibiting the acceptance of memberships worth more than $50. I’m thinking about this in the context of ABA Model Rule 3.5(a), which prohibits a lawyer from seeking “to influence a judge, juror, prospective juror or other official by means prohibited by law”. If you’re curious, Oregon’s Code of Judicial Conduct can be found here.
2. Considering the ethics of law school admissions — do clout heavy officials have too much power to determine which applicants make it through the process?
3. With all the talk around here about social networking websites (Facebook, MySpace, LinkedIn, etc.), it’s worthwhile to consider firm policies addressing their use. The Lawyerist has an interesting discussion on the topic.
4. Mike wrote an important post about stress and lawyering a few weeks ago; and last week, I posted a bullet on how one secretary was handling the economic downturn. This month, Denise Howell from Bag and Baggage, weighs in with a column over at The American Lawyer on work-life balance in an economic downturn. Among her points — that “flexibility and balance-oriented policies are tools that can help firms survive the conflagration.” (Not to mention the fact that I really like her use of the word conflagration.)

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Mid-Week EQs

I saw a few interesting articles while looking around the net this week.  Just wanted to post a few of the links here.

• A few weeks ago, Mike wrote an important post about stress and lawyers. Thinking about it further, it’s not difficult to conclude that an economic downturn could exacerbate the level of stress lawyers already feel. But lawyers are not the only ones feeling stress. Above the Law has a real-life example of how one secretary is handling the recession. Needless to say, sometimes an email to the entire firm isn’t a great idea.
• I was poking around on the ABAJournal website yesterday and came across their May 29 “Legal Ethics” column.  I’m still thinking about which rules are implicated when a criminal defense lawyers sends an inmate facing a possible death sentence a photo from “a bare-breasted admirer.”
• I’m a gadget guy.  I like electronics, blogs, messing around on the internet.  But I haven’t gotten into social networking websites. I think its great that my friends do it, but I just don’t get it. I don’t Facebook or Myspace or Linkedin. At least not yet anyway. But check out this article about how a judge got in hot water for friending a lawyer on Facebook — while that lawyer was trying a case in the judge’s courtroom. In addition to writing posts about the trial, the judge also admitted googling the lawyer’s client.

Should Judges Recuse for Gifts? CPA Standard May Help

On March 17 the Judicial Conference of the United States announced that it was adopting new ethics canons effective July 1, 2009.  The change that is drawing the most attention is an amendment to the Commentary on Canon 2 that defines an “appearance of impropriety” as follows:

An appearance of impropriety occurs when reasonable minds, with knowledge of all the relevant circumstances disclosed by a reasonable inquiry, would conclude that the judge’s honesty, integrity, impartiality, temperament, or fitness to serve as a judge is impaired.

See http://www.uscourts.gov/Press_Releases/2009/0309JudicialConf.cfm.

News that federal judges had adopted new standards has reignited a discussion among legal ethicists on the APRL listserv regarding when the receipt of a gift or entertainment from a litigant or attorney should cause a judge to recuse.

Perhaps the legal profession and judges could borrow from the American Institute of CPA’s standard for when gifts or entertainment impair the objectivity of an accountant. AICPA Code of Professional Conduct Ethical Ruling 113 offers the following guidance on when a gift will impair independence:

*           The nature of the gift or entertainment

*           The occasion giving rise to the gift or entertainment

*           The cost or value of the gift or entertainment

*           The nature, frequency, and value of other gifts and entertainment offered or accepted

*           Whether the entertainment was associated with the active conduct of business either directly before, during, or after the entertainment

*           Whether other [persons] also participated in the entertainment

*           The individuals . . . who participated in the entertainment

http://www.aicpa.org/about/code/et_191.html#et_191_ruling_113.

Of note, the AICPA considers a “gift” more dangerous than entertainment. Thus, giving an accountant a gift certificate for dinner is seen as a greater threat to objectivity than having dinner with the accountant. A similar bias in favor of entertainment may not apply for judges.