The ease of establishing contacts on the internet can lead to hard ethical questions regarding appearances of impropriety.
Faced with such a question, the Court of Appeals of Wisconsin refused to draw a bright-line rule prohibiting the judicial use of social media. However, the court held, in the case of In re Paternity of BJM, that accepting a Facebook “friend” request from a party with a motion pending creates an appearance of impropriety and warrants replacing the judge.
A Secret Request
The parties were engaged in a child-custody dispute in which one party accused the other of domestic abuse. They participated in an evidentiary hearing and, later, written briefing to the lower court. Three days after the parties submitted their briefs, the judge accepted the Facebook “friend” request of the accusing party but failed to disclose this new connection to the accused or his counsel.
Over the course of the newly made online friendship, the accusing party “liked” 18 of the judge’s posts and commented on another three. The judge did not “like” any posts of the accusing party or reply to any of the accusing party’s comments. None of this activity directly concerned the pending child-custody dispute. That said, the accusing party “liked” multiple third-party posts regarding issues of domestic violence and also shared a “photograph related to domestic violence.”
Based primarily on the timing of the connection, the appellate court held that this conduct gave rise to the appearance of partiality. The court noted that the accusing party’s and the judge’s lack of disclosure only added to the appearance of partiality and gave rise to concerns regarding ex parte communications. Before requiring that the case proceed with a different judge, the appellate court cautioned “that judges should recognize that online interactions, like real-world interactions, must be treated with a degree of care.”
The Rocky Shoals
“There is no per se rule against having Facebook friends with litigants or parties,” says Daniel D. Quick, Troy, MI, cochair of the ABA Section of Litigation’s Trial Practice Committee. “It all depends on context, and I think that’s exactly what you saw play out here.”
In particular, Quick believes the pending nature of the ruling and the ex parte nature of the connection played a large role in the appellate court’s decision. He also deduces this was not a hard decision, regardless of the statement in ABA Formal Opinion 462 that not all social media contacts are inappropriate.
“If a judge completed a bench trial and one of the litigants suggested you go to lunch before giving a ruling, most judges would decline and deem the request inappropriate,” adds Quick. “That’s the functional equivalent of what this was.”
The timing was bad, agrees Emily J. Kirk, Edwardsville, IL, cochair of the Section of Litigation’s Solo & Small Firm Committee. She also surmises the lack of a prior relationship played a role in the court’s decision.
“It would have been different if the client was already acquainted with the judge and the relationships had been disclosed,” Kirk continues. “It’s different with active litigation.”
Quick finds this situation comparable to a client that lives in the same neighborhood or belongs to the same church or country club.
“We have to hold back overzealous clients from engaging in contacts that are inappropriate and can have an adverse effect on matters,” cautions Quick. “If you get a suggestion that your client is someone that might engage in improper conduct, social media, or otherwise, you have an obligation to keep the ship from going into the rocky shoals.”
Reining in Clients
Kirk says she spends a significant amount of time discussing social media generally with her clients. Specifically, Kirk explains that postings and other online activity will be scrutinized in litigation. In the wake of this decision, however, Kirk believes it may be time for all attorneys to expand their advice regarding social media activity involving judges. Kirk also believes that, should you find yourself in the situation faced by counsel for the accusing party, disclosure is key.
“I would immediately let the other side know and gather as much information as I could from the client to determine what happened,” Kirk advises. “I think the fact that it was not disclosed by anyone led to the appearance of impropriety, and if it was really no big deal, it would be better off to know that it was not a really big deal.”
As technology continues to change and evolve, similar situations will continue to occur, Quick predicts. He expects the new formats and social media platforms will provide opportunities for all involved to make well-intentioned mistakes. He cautions all to appreciate the reach of social media, the types of relationships it can establish, and the unfortunate potential for the appearance of impropriety.
Mark A. Flores is a contributing editor for Litigation News.
Hashtags: #Facebook, #AppearanceofImpropriety, #socialmedia, #exparte, #judicialethics
- Hon. Barbara A. Jackson, “To Follow or Not to Follow: The Brave New World of Social Media,” The Judge’s Journal (Nov. 2014).
- Cynthia Sharp, “Social Media: The Litigation Context,” GPSolo Report (Feb. 13, 2014).
- Marla Greenstein, “Reflections on the Future of Judicial Ethics,” The Judge’s Journal (May 1, 2013).
- Bethany Leigh Rabe, “Can Judges “Friend” Attorneys on Social Media?,” Litigation News (Jan. 14, 2013).
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