Michael Hoenig

Are there potential problems with judges using social media sites such as Facebook, LinkedIn, Twitter and MySpace? After all, these platforms have staggering user numbers (Facebook—some 1.8 billion users worldwide; LinkedIn—some 500 million total users; Twitter—321 million active monthly users; and MySpace—5.5 million in the United States), so there's plenty of daily communications among lots of folks, and networks of individuals, groups and organizations with shared relationships, interests or activities.

Ostensibly, judges should be able to enjoy the benefits of technological advances just as anyone else. Thus, if Facebook allows users to “friend” other users, to add photo albums, post status updates, share connections with relatives and friends, express interests in books, articles, movies and TV shows and music, then why should judges' use of Facebook pose complexities? The answer is not easy but it resides within the vaunted professional tasks the judge performs as a dispenser of justice.

He or she must adhere to certain rules that uphold and promote integrity, impartiality and avoidance of impropriety or the appearance of impropriety. See, e.g., Canon 1 of the Model Code of Judicial Conduct. Impartiality can be affected by ex parte communications between the judge and a lawyer or litigant appearing before him or even with third parties related to them. See Canon 2. Judges also must “conduct … personal and extra-judicial activities to minimize the risk of conflict with the obligations of judicial office.” See Canon 3.

Much has been written on the potential for social media use to trigger questions about judges compromising their standards. See, e.g., S. Singh, “Friend Request Denied: Judicial Ethics and Social Media,” 7 J. of Law, Technology and the Internet 153 (2016); J. G. Browning, “Why Can't We Be Friends? Judges' Use of Social Media,” 68 U. Miami L. Rev. 487 (2014); M. L. Fox, “'Objection, Your Honor' (To Your Social Media Activity?),” NYSBA Journal; C. Gray, “Standing Alone: Facebook, Friendship and Disqualification” (Nat'l Center for State Courts, Center for Judicial Ethics (November 2018)); Judicial Ethics Advisory Opinions on Social Media (Nat'l Center for State Courts).

Facebook 'Friend'

In late February, a Wisconsin appellate court held that a judge's undisclosed Facebook “friendship” with a litigant amounted to objective bias and violated due process. In re: The Paternity of B.J.M.: Miller v. Carroll (Wis. App. Ct., Feb. 2018); see J. Forward, “Facebook 'Friendship' Between Judge and Litigant Created Risk of Bias,” Wis. Bar News (February 2019). Although the facts of the case likely are over the edge, the appellate court's discussion illustrates the tensions that Facebook “friendship” can raise as well as borderline situations. A mother (Carroll) sought modification of the custody and placement of her son as well as support payments the father (Miller) was to make. The judge, after a contested hearing, issued a decision favorable to the mother. The father appealed the order, arguing that the lower court demonstrated objective bias by accepting a Facebook “friend” request from Carroll after the hearing but before the decision. This Facebook connection was not disclosed to Miller or his counsel.

From the time the Facebook “friendship” was established until the judge's written order issued, Carroll “liked” 18 of the judge's Facebook posts and commented on two of them. None of the “likes” or comments were directly related to the pending litigation. The judge, in turn, did not “like” or comment on any of the mother's posts, nor did he reply to any of her comments on his posts. During this timeframe Carroll also “liked” multiple third-party posts and “shared” one third-party photograph related to domestic violence. Due to the nature of Facebook friendship, the mother's activity could have appeared on the judge's Facebook “newsfeed.”

On the day of the judge's decision, Carroll posted: “the Honorable Judge has granted everything we requested.” Miller found out about the Facebook connection and moved for reconsideration of the adverse decision, disqualification of the judge and a new hearing. The judge rejected the relief concluding he was not biased by accepting Carroll's “friend” request because he already “had decided how he was going to rule, even though it hadn't been reduced to writing.” He also concluded there was no objective bias.

The appellate court discussed principles of impartiality, appearance of bias or partiality and violation of due process. No Wisconsin advisory ethics opinion directly addressed the issue here but an American Bar Association (ABA) ethics opinion plus decisional law in other states provided some guidance. Those authorities concluded that judicial use of social media, standing alone, generally does not require judicial disqualification. Still, the precedents “caution that judges must be careful to avoid creating the appearance of impropriety in using social media.”

The Wisconsin court then elaborated an overview of what a Facebook “friendship” and other features provide. Although the judge here had thousands of Facebook “friends”, Carroll “friended” him after testifying at a contested hearing. The judge accepted Carroll as a “friend” before issuing his decision. First, the timing here created a risk of bias and a resulting appearance of partiality. Second, the nondisclosure of the Facebook connection “leads to reasonable concerns.” Third, the litigant's sending a “friend” request during ongoing litigation raises ex parte communication concerns. Such ex parte contacts occurred to the extent the judge and Carroll viewed each other's Facebook posts. Some of Carroll's communications to the site included “liking” and “sharing” of posts related to domestic violence.

The Wisconsin court held that the undisclosed Facebook connection during ongoing litigation created a “great risk of actual bias resulting in the appearance of partiality.” A due process violation occurred. Said the court: “Although we do not determine the general propriety of judicial use of ESM, we caution that judges should recognize that online interactions, like real-world interactions, must be treated with a degree of care.”

Divided Opinion

In November of last year, the Florida Supreme Court held 4-3 that a judge's mere Facebook “friendship” with a lawyer involved in the case before him was not a basis for disqualification. Law Offices of Herssein & Herssein, P.A. v. United Servs. Auto. Ass'n, 2018 WL 5994243 (Fla. Sup. Ct. Nov. 15, 2018). The four-justice majority was somewhat fragile since one justice concurred in the result but wrote separately “to strongly urge judges not to participate in Facebook.” The three-justice dissent would adopt a strict rule requiring judges to recuse themselves in such situations.

The court's decision focused on the premise that a digital “friendship” on Facebook is not necessarily indicative of a friendship in the traditional sense. Without more, such a conclusion does not convey a close friendship. Facebook “friends” are more casual and less permanent than traditional friendships and the connection “may be as fleeting as the flick of a delete button.” The mere fact that a judge and attorney appearing before him are Facebook “friends” reflects only a “relationship indeterminate in nature.” Of interest, the justices rejected a Florida Judicial Ethics Advisory Committee's advice that judges should not “friend” lawyers who appear before them, concluding it was a minority position.

The Florida decision reflects tensions I suggested at the outset of this column. The four-justice ruling does not seem granite-hard since the concurring justice strongly urges that judges not participate in Facebook. The three dissenting justices want a bright-line strict rule of non-participation. Add the concurring justice's real viewpoint and the arithmetic informally “flips” to 3-4. See D. C. Weiss, “Judge's Facebook Friendship with Lawyer Doesn't Necessarily Require Recusal, Says Florida top Court,” ABA J. (Nov. 16, 2018).

Prof. Michael L. Fox, in his NYSBA Journal article (see supra) published before the Wisconsin and Florida Supreme Court decisions discussed here, observes that a judge is not forbidden to have social media accounts. Indeed, New York ethics opinions have held that there is nothing inherently improper about a judge using social media. However, these opinions have advised that “judges should take care concerning appearances of impropriety, should stay abreast of changes in technology that may impact the judge's duty under the Rules, and should consider whether online connections and friendships in combination with any other factors create a circumstance for recusal.” Professor Fox relates several illustrative cases where problem issues arose, including one in New York in 2016 involving a Town Court Justice who posted comments to Facebook about an ongoing prosecution before a different Town Court.

In New York Opinion 13-39 (2013), a judge in a criminal case asked the Advisory Committee on Judicial Ethics whether he had to recuse himself at the request of the defense attorney or defendant because the judge was Facebook friends with the parents or guardians of minors affected by defendant's activities. As Professor Fox reports, the opinion held that “Facebook friend status alone was not sufficient for recusal, and the judge's impartiality was not reasonably in question. There was thus no appearance of impropriety.” The Advisory Opinion cautioned, however, that the judge “should be mindful of the appearance created when he/she establishes a connection with an attorney or anyone else appearing in the judge's court through a social network … [and] must, therefore, consider whether any such online connections, alone or in combination with other facts, rise to the level of a relationship requiring disclosure and/or recusal.”

Approaches Vary

In the Town Court Justice case, the N.Y. State Commission on Judicial Conduct held in December 2016 that there were violations. The Commission said: “[P]osts to Facebook are public, cannot be considered private in any sense and [a]ccordingly, a judge who uses Facebook or any other online social network should recognize the public nature of anything he/she places on a social network page and tailor any postings accordingly.” And, as Professor Fox observes, the Commission added that, for Judges who are held to more stringent standards of conduct, “Internet-based social networks can be a minefield of 'ethical traps for the unwary.'”

Both the Singh and Browning Law Review articles (see supra) suggest that state court decisions and state bar advisory opinions fall into categories when it comes to acceptable judicial use of social media sites. Singh calls them the “strict,” “moderate” and “liberal” approaches, identifying the various state positions. Browning refers to them as the “restrictive” approach and the “cautiously integrative” or “permissive” approach. Not wholly satisfied with these, Browning advocates a so-called “digitally enlightened or realistic approach.” The latter recognizes that social media use for judges has significant positive aspects. Indeed, for judges who are elected, social media is a practical tool for election campaigns.

Since bright-line rules don't seem to exist, except perhaps in the “strict approach” states, the uncertainties will blossom over time and increased litigation. Much depends on the factual setting. If the Facebook connection is minimal and amounts to the mere equivalent of judges talking to attorneys (or current or prospective litigants) at state bar functions and routine social events, it seems difficult to construct an appearance of impropriety. If the connection is deeper—well, there may be potential problems, as the Wisconsin and Florida decisions reflect.

For attorneys, the judicial use of social media presents delicate dilemmas. Does the appearing attorney, in abundance of caution, research the judge's Facebook profile and posts? Does he/she ask the judge about it? There are lots of reasons to be skittish about undertaking such forays. For judges who post robustly, depending on the facts, do they need to first research whether each attorney, litigant or witness coming before them might be a Facebook friend? Should they disclose such a connection? The foregoing questions and many others will call for rational decision-making and conduct by advocates and jurists.

Conclusion

Judges have private lives and social media use can enhance their enjoyment and quality. On the other hand, they have professional lives too—making the huge American justice system work fairly. How to balance such interests is quite the challenge. For lawyers, should they be intrusively inquisitive, possibly introducing an air of suspicious tension where calm should prevail? Without bright-line rules, the facts will dictate the course. Alas, as a practical matter, the future saga may be written via motions to recuse, disqualify, reconsider rulings and appeals.

Michael Hoenig is a member of Herzfeld & Rubin.