Common and Desirable
Rule 2.11 of the 2007 ABA Model Code of Judicial Conduct does not specifically address the issue of judicial disqualification based on a friendship with an attorney; instead, the question is analyzed under the general rules that “[a] judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned”1 and “a judge should disclose on the record information that the judge believes the parties or their lawyers might reasonably consider relevant to a possible motion for disqualification, even if the judge believes there is no basis for disqualification.”2
The U.S. Court of Appeals for the Seventh Circuit noted that friendships between judges and lawyers are “common” and “desirable.”3
A judge need not cut himself off from the rest of the legal community. Social as well as official communications among judges and lawyers may improve the quality of legal decisions. Social interactions also make service on the bench, quite isolated as a rule, more tolerable to judges. Many well-qualified people would hesitate to become judges if they knew that wearing the robe meant either discharging one’s friends or risking disqualification in substantial numbers of cases.
The court concurred with the many other courts “that have held that a judge need not disqualify himself just because a friend—even a close friend—appears as a lawyer.”
However, the court stated, when the relationship “exceeds ‘what might reasonably be expected’ in light of the associational activities of an ordinary judge . . . the unusual aspects of a social relation may give rise to a reasonable question about the judge’s impartiality.” Emphasizing that the “inquiry is entirely objective and is divorced from questions about actual impropriety,” the court stated that the test was
[w]hether an astute observer in either [the legal or the lay] culture would conclude that the relation between judge and lawyer (a) is very much out of the ordinary course, and (b) presents a potential for actual impropriety if the worst implications are realized.4
Judicial ethics advisory committees have also addressed the question of judicial disqualification and attorney friendships. For example, the U.S. Judicial Conference Committee on Codes of Conduct stated that the question whether a judge should disqualify himself in cases where one of the attorneys is the godfather of one of his children was “not capable of answer by crisp formulation.”5 The committee stated that no reasonable question of impartiality “would be raised if the relationship were simply one of historical significance, the godfather being merely within the wide circle of the judge’s friends, and the obligation having been perfunctorily assumed.” But, the committee advised, “if the godfather is a close friend whose relationship is like that of a close relative, then the judge’s impartiality might reasonably be questioned.”
No Litmus Test
Similarly, stating “there is no easy litmus test,” the Massachusetts Supreme Judicial Court Committee on Judicial Ethics advised a judge to consider the frequency with which an attorney appears before her, the nature and degree of their social interaction, and the culture of the legal community; for example, how many attorneys practice in her court and “how likely is it that trips to public venues, such as restaurants, or boating excursions and vacation trips will become known to local practitioners?”6 The Delaware Judicial Ethics Advisory Committee stated that “a merely ‘close’ friendship” with a deputy attorney general did not require disqualification even though the judge and the attorney socialized frequently and the attorney sometimes babysat for the judge’s children.7 However, the committee acknowledged, “the circumstances of a particular friendship could become so close and continuing that the parties to the friendship are commonly identified as closely associated by reasonable people who know them . . . especially if the relationship develops other aspects, including but not limited to financial or amorous relations.” The committee further cautioned the judge to “be constantly vigilant” about whether, subjectively, the relationship influences his judicial conduct or judgment.
The New York Advisory Committee on Judicial Ethics described three categories of relationships between judges and lawyers—acquaintance, close social relationship, and close personal relationship—and a judge’s duties under the disqualification rule for each category.8 If a judge and an attorney are acquaintances, the committee advised, the judge is not required either to disqualify or to disclose the relationship when the attorney appears as long as the judge believes she can be fair and impartial. The committee defined “acquaintance” as when the interactions and contacts between a judge and an attorney outside court, even if regular or periodic, result from “happenstance or some coincidental circumstance,” for example, at bar association meetings, sporting or school events involving their children, or religious services. Thus, the committee advised that a judge is not required to disqualify or disclose when a member of his golf club appears before him as an attorney when they do not socialize other than to attend the same golf competitions or bar association functions less than 10 times a year.9
If the relationship between a judge and an attorney is a close social relationship, the New York committee advised, a judge must fully disclose the facts and nature of the relationship in a case in which the attorney appears, but disqualification is not required even if a party objects to the judge’s continued participation in a case. The committee did not define “close social relationship” but gave as an example a previous opinion in which it had stated that a judge should disclose when he and the attorney formerly had a business/professional relationship before he became a judge and they and their families currently have a social relationship (the judge’s children were members of the attorney’s wedding party; the judge, the attorney, and their spouses dined together once a year; and the judge’s children babysat for the attorney’s children).10
Finally, if a judge and an attorney have a close personal relationship, the committee advised, the judge must disqualify herself when the attorney appears in a case. The committee defined a close personal relationship as one in which the judge and the attorney “share intimate aspects” of their personal lives and their families’ lives; for example, they and/or “members of their immediate families share confidences, socialize regularly, vacation together, celebrate significant events in each other’s lives, and/or share interests that are important to them personally.” As an example, the committee stated that a judge must disqualify when her former law partner appears in the judge’s court if, although they have not socialized individually since the judge took the bench three years previously, they and their families maintain a close social relationship.11
The Washington Ethics Advisory Committee noted that the canon does not require a judge to be disqualified from “a matter in which a friend of the judicial officer is acting as counsel in the absence of other circumstances . . . such as where, because of the friendship, it would appear that the judicial officer might not be impartial or the judicial officer questions his/her ability to be impartial.”12 The committee approved an approach that, it stated, “[w]hile not specifically required by the rule, . . . is utilized by some judicial officers and is one that the Committee believes is in tune with the spirit of the rule.”
The judicial officer should disclose that he is either acquainted with or friends with counsel and explain the nature of the relationship. In some situations because of the nature of that relationship, the judicial officer should recuse if he cannot be impartial or if the judicial officer’s impartiality might be reasonably questioned. In other situations, the judicial officer might invite comments or concerns from counsel and/or the parties about the relationship and the judicial officer should recuse if the judicial officer concludes that his impartiality might reasonably be questioned.
The California Judges Association Ethics Committee explained why a judge’s disclosure of a relationship with an attorney is “desirable,” even if disqualification may not be warranted.13 The committee emphasized that
[d]isclosure in an abundance of caution will assuage any doubt in most cases. A party or attorney learning of this affiliation directly from the judge is far less likely to question the judge’s impartiality than one who learns about it later from another source. By clearing the air, the judge dispels any potential doubt about impartiality.
For example, the committee advised that a judge need not disqualify from cases involving an attorney with whom the judge is friendly in such activities as golfing, jogging, and dining but must disclose the relationship.14
If a judge disqualifies himself because of a close friendship with an attorney, disqualification when an attorney from the same firm as his friend appears is not required, but disclosure may be necessary.15
When an attorney who a judge knows appears in a case, the judge should apply a two-part test, with subjective and objective components. First, the judge consults her own “emotions and conscience” for a subjective bias or prejudice.16 Second, if the judge believes she can be fair, the judge then asks whether an objective observer, fully informed of the nature of the relationship, would entertain significant doubts that the judge could act impartially in cases involving the attorney.
To apply the objective test, a judge should consider the following factors identified in advisory opinions:
- Whether their families are included in their socializing.
- Whether their family members have interrelationships.
- Whether they and/or their family members share confidences.
- Whether they and/or their families celebrate significant events in each other’s lives.
- Whether they and/or their families share important personal interests.
- Whether they and/or their families vacation together.
- Whether they and/or their families visit each other’s homes.
- Whether they socialize in public or private settings.
- Whether they socialize as part of a large group or one-to-one.
- Whether they initiate their social contacts or the interactions result from coincidence.
- Whether they have plans for future get-togethers.
- The frequency of their social contacts.
- The length of the relationship.
- Whether the relationship is continuing.
- Whether there are additional circumstances such as a current or past financial, political, partnership, or amorous relationship.
- Whether the judge has received gifts or hospitality from the attorney.
- The frequency with which the attorney appears before the judge.
- The culture of the legal community.
- The number of attorneys who practice in the judge’s court.
- Whether other local practitioners know that the judge and the attorney socialize.
- Whether the judge’s relationship with the attorney differs significantly from the judge’s relationship with other attorneys.
- Whether other people commonly identify them as closely associated.
Some judicial ethics opinions have advised that a judge should not be “friends” on Facebook or other social media with attorneys who appear before the judge. In those states, the question whether a social media connection triggers disqualification should not arise.
Committees in other states, however, have not drawn a bright line prohibiting judges from making social media connections with attorneys who may appear before them, and those committees have also advised that whether an online friendship requires disqualification is a fact-based inquiry that depends on all of the circumstances. The Ethics Committee of the Kentucky Judiciary17 and the New York committee18 have stated that a judge must consider whether any online connections, alone or in combination with other facts, rise to the level of a close social relationship requiring disclosure and/or disqualification. The New York committee noted that “the public nature of such a link (i.e., other users can normally see the judge’s friends or connections) and the increased access that the person would have to any personal information the judge chooses to post on his/her own profile page establish, at least, the appearance of a stronger bond” than that of an offline acquaintance. Emphasizing the importance of the frequency and substance of the contacts, the Utah Judicial Ethics Committee stated that “disqualification is not automatically required simply because a judge and a lawyer are ‘friends’ on Facebook,” but that “being ‘friends’ is one factor to consider when deciding whether recusal is necessary.”19 The California committee advised that, if a judge has created a very personal page on a social media site and adopted an exclusive policy regarding whom to include on the site, the judge should disqualify if one of those he has chosen to friend appears as an attorney in a case.20
In its formal opinion regarding judges and social media, the American Bar Association Standing Committee on Ethics and Professional Responsibility advised a judge to evaluate any electronic social media “connection with a lawyer or party who has a pending or impending matter before the court . . . to determine whether the judge should disclose the relationship prior to, or at the initial appearance of the person before the court.”21 Stating “context is significant,” the committee concluded that “simple designation as an [electronic social media] connection does not, in and of itself, indicate the degree or intensity of a judge’s relationship with a person” and “because of the open and casual nature of [electronic social media] communication, a judge will seldom have an affirmative duty to disclose an [electronic social media] connection.” However, the committee stated, “if that connection includes current and frequent communication, the judge must very carefully consider whether that connection must be disclosed.”
The committee stated that, when a judge knows that she has a social media connection with a party, a witness, or a lawyer in a case, the judge “should conduct the same analysis that must be made whenever matters before the court involve persons the judge knows or has a connection with professionally or personally.” The committee advised that “a judge may decide to disclose that the judge and a party, a party’s lawyer or a witness have an [electronic social media] connection, but that the judge believes the connection has not resulted in a relationship requiring disqualification.” However, the committee also stated that a judge is not required “to search all of the judge’s [electronic social media] connections if a judge does not have specific knowledge of an [electronic social media] connection that rises to the level of an actual or perceived problematic relationship with any individual.”
The disqualification implications of social media relationships have not yet been presented to many appellate courts. Granting a writ of prohibition, the Florida Forth District Court of Appeal held that a criminal defendant’s allegation that a judge was a Facebook friend of the prosecutor assigned to his case would create in a reasonably prudent person a well-founded fear of not receiving a fair and impartial trial, which is the Florida standard.22 The defendant had explained that his Facebook “friends” were only his “closest friends and associates, persons whom [he] could not perceive with anything but favor, loyalty and partiality” and apparently assumed the same was true for the judge; he attributed adverse rulings to the judge’s Facebook relationship with the prosecutor. The trial judge had denied the motion as “legally insufficient.” The appellate court relied on an opinion in which the Judicial Ethics Advisory Committee concluded that a judge’s listing of a lawyer as a “friend” on the judge’s social networking page would “convey or permit others to convey the impression that they are in a special position to influence the judge”23 and held that the judge should have disqualified himself.24
In contrast, in a case in which the judge was friends on Facebook with the father of the victim in a case, the Texas Court of Appeals held that the designation of someone as a friend on Facebook “standing alone” was not sufficient to require disqualification without more information about the nature of the relationship.25
Even if a judge is confident that she can make a ruling contrary to an attorney/friend’s interest in a case with “utter disinterest and aloofness,”26 the public and litigants are not privy to the judge’s subjective feelings, and the judge must step back and try to evaluate the relationship objectively through others’ perspectives. Although no bright line can be drawn that would encompass the myriad variety of social relationships, judicial ethics advisory committees have offered substantial general guidance and significant specific examples on which judges can draw.
1. Model Code of Judicial Conduct R. 2.11(A) (2007).
2. Id. R. 2.11 cmt. 4.
3. United States v. Murphy, 768 F.2d 1518, 1537 (7th Cir. 1985).
4. Id. In Murphy, the court decided that the relationship between the trial judge and the principal trial lawyer for the United States was unusual enough to require disqualification, noting they were “the best of friends” and were to take a joint vacation with their families right after the trial. Id. at 1538. That conclusion did not lead to reversal of the verdict against Murphy, however, because the court also concluded that, “although perhaps 999 of 1,000 observers would have been stunned to discover that judge and prosecutor were about to go on a joint vacation, the remaining one of the thousand was on Murphy’s defense team” and even the defendant conceded that he knew that the judge and the prosecutor were close friends.
5. U.S. Comm. on Codes of Conduct, Advisory Op. 11 (2009), available at http://www.uscourts.gov/Viewer.aspx?doc=/uscourts/RulesAndPolicies/conduct/Vol02B-Ch02.pdf.
6. Mass. Comm. on Judicial Ethics, Advisory Op. 04-9 (2004), available at http://www.mass.gov/courts/sjc/cje/2004-9n.html.
7. Del. Judicial Ethics Advisory Comm., Advisory Op. 2002-2 (2002), available at http://courts.state.de.us/jeac/opns/02-2.pdf.
8. N.Y. Advisory Comm. on Judicial Ethics, Advisory Op. 11-125 (2011), available at http://www.nycourts.gov/legacyhtm/ip/judicialethics/opinions/11-125.htm.
9. Id., Advisory Op. 12-151 (2012), available at http://www.nycourts.gov/legacyhtm/ip/judicialethics/opinions/12-151.htm.
10. Id., Advisory Op. 08-166 (2008), available at http://www.nycourts.gov/legacyhtm/ip/judicialethics/opinions/08-166.htm.
11. The judge and the attorney had many mutual friends, they and their spouses continued “to see each other ‘at social events and sometimes family outings,’” their children are close friends who often visit each other’s homes, the attorney is the godparent of the judge’s child, and the attorney’s spouse purchases birthday and holiday gifts for the judge’s child each year. Id., Advisory Op. 11-45 (2011), available at http://www.nycourts.gov/legacyhtm/ip/judicialethics/opinions/11-45.htm. See also id., Advisory Op. 06-149 (2006), available at http://www.nycourts.gov/legacyhtm/ip/judicialethics/opinions/06-149.htm (a judge is disqualified in cases involving an attorney who drives to the judge’s house once or twice a month so they can walk their dogs together; who went to the beach with the judge and has dined at a restaurant with the judge a few times a year for two to four years; who drove the judge to campaign events; and who has attended social functions at the judge’s residence).
12. Wash. Ethics Advisory Comm., Advisory Op. 04-2 (2004), available at http://www.courts.wa.gov/programs_orgs/pos_ethics/?fa=pos_ ethics.dispopin&mode=0402.
13. Cal. Judges Ass’n Judicial Ethics Comm., Advisory Op. 45 (1997), available at http://www.caljudges.org/files/pdf/Op%2045%20%20Final.2.pdf.
14. Id., Advisory Op. 47 (1997), available at http://www.caljudges.org/files/pdf/Op%2047%20Final.pdf.
15. See Conn. Comm. on Judicial Ethics, Advisory Op. 2010-28 (2010), available at http://jud.ct.gov/Committees/ethics/sum/2010-28.htm (when the new attorney retained by a losing party to file a motion to reconsider is from a small law firm that includes a named partner with whom the judge has a close personal relationship, the judge is not required to disqualify if the friend is basically retired, but should disclose the relationship); Id., Emergency Staff Op. 2009-30 (2009), available at http://jud.ct.gov/Committees/ethics/sum/2009-30.htm (a judge is not required to recuse herself from a case involving an attorney from the same firm as an attorney with whom the judge has a close social relationship); Fla. Judicial Ethics Advisory Comm., Advisory Op. 04-35 (2004), available at http://www.jud6.org/LegalCommunity/Legal Practice/opinions/jeacopinions/2004/2004-35.html (a judge must disclose a close personal friendship with an attorney in cases involving that attorney’s associate if the judge would disclose the relationship if the friend were appearing personally); N.Y. Advisory Comm. on Judicial Ethics, Advisory Op. 12-85(B) (2012), available at http://www.nycourts.gov/ip/judicialethics/opinions/12-85(B).htm (a judge’s obligation to disqualify or disclose when an attorney with whom he has a social relationship appears does not automatically extend to the attorney’s firm or colleagues); U.S. Comm. on Codes of Conduct, Advisory Op. 11 (2009), available at http://www.uscourts.gov/Viewer.aspx?doc=/uscourts/RulesAndPolicies/ conduct/Vol02B-Ch02.pdf (a judge is not required to recuse from all cases handled by a law firm simply because the judge is friends with some members of the firm, absent special circumstances).
16. Mass. Comm. on Judicial Ethics, Advisory Op. 04-9 (2004), available at http://www.mass.gov/courts/sjc/cje/2004-9n.html.
17. Ethics Comm. of the Ky. Judiciary, Advisory Op. JE-119 (2010), available at https://courts.ky.gov/commissionscommittees/JEC/JEC_Opinions/JE_119.pdf.
18. N.Y. Advisory Comm. on Judicial Ethics, Advisory Op. 08-176 (2008), available at http://www.nycourts.gov/legacyhtm/ip/judicialethics/opinions/08-176.htm. See also New York Advisory Opinion 13-39 (“mere status of being a ‘Facebook friend,’ without more, is an insufficient basis to require recusal”), available at http://www.nycourts.gov/legacyhtm/ip/judicialethics/opinions/13-39.htm.
19. Utah Judicial Ethics Comm., Advisory Op. 12-1 (2012), available at http://www.utcourts.gov/resources/ethadv/index.asp.
20. Cal. Judges Ass’n Judicial Ethics Comm., Advisory Op. 66 (2010), available at https://www.caljudges.org/docs/Ethics%20Opinions/Op%2066%20Final.pdf.
21. ABA Standing Comm. on Ethics and Prof’l Responsibility, Formal Op. 462 (2013), available at http://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/formal_opinion_462.authcheckdam.pdf.
22. Domville v. State, 103 So. 3d 184, 185 (Fla. 4th DCA 2012).
23. Fla. Judicial Ethics Advisory Comm., Advisory Op. 2009-20 (2009), available at http://www.jud6.org/LegalCommunity/LegalPractice/opinions/jeacopinions/2009/2009-20.html.
24. Domville, 103 So. 3d at 185. Subsequently, the court certified to the Florida Supreme Court as of “great public importance” the question: “Where the presiding judge in a criminal case has accepted the prosecutor assigned to the case as a Facebook ‘friend,’ would a reasonably prudent person fear that he could not get a fair and impartial trial, so that the defendant’s motion for disqualification should be granted?” Domville v. State, 2013 WL 163429 (Fla. 4th DCA Jan. 16, 2013). The Florida Supreme Court declined to exercise jurisdiction. Domville v. State, 2013 WL 599133 (Fla. Feb. 14, 2013).
25. Youkers v. State of Texas, 2013 WL 2077196 (Tex. Ct. App. May 15, 2013).
26. United States v. Murphy, 768 F.2d 1518, 1538 (7th Cir. 1985) (quoting Pepsico, Inc. v. McMillen, 764 F.2d 458, 461 (7th Cir. 1985)).