Facebook-ing – Do You Consider Judges Your Friends?

December 17th, 2009 | By David Elkanich

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:

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.

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.

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.

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