Judges Enjoy Online Freedom That Lawyers Don't

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Published on 1/24/10

Over the past decade, the Internet has created ethics dilemmas that lawyers and bar associations never could have imagined.

Thanks to websites, blogs and social networks, lawyers have a virtually unlimited presence. They are often governed in their online conduct by rules of jurisdictions in places where they have never set foot, though one would normally conclude that receiving an e-mail from anyone anywhere in the world does not create a lawyer-client relationship.

Lawyers also are bound by the Rules of Professional Conduct in what they say online.

While lawyers are restricted in their use of social media, judges apparently are not. Bar associations in Ohio, Kentucky, New York and South Carolina recently have ruled that judges can "befriend" attorneys and others on social networking sites, provided that they tread carefully.

The Ohio decision held that judges should not make comments online about matters pending before them, interact with an individual or organization in ways that would erode confidence in the judge's impartiality in matters that come before the court, or use social networking sites to obtain information regarding a matter before them. But, without more being said, judges are free to join in the discussions on social media.

That seems insufficient. I totally oppose judges using social media because the appearance of impropriety is just too manifest for judicial officers to contest. How can a judge know that someone who is a "friend" today won't be a party or lawyer in court tomorrow?

It was on that basis in 2009 that the Judicial Ethics Advisory Committee for the Florida Supreme Court decided that judges could not add lawyers who appear before them as friends online. The simple fact is that judges' participation in social media networks per se violates the appearance of impartiality.

A vivid illustration of the dangers that can arise in such cases came several years ago in a matter that precipitated an ethics ruling by the Los Angeles County Bar Association (Formal Opinion, No. 514, Aug. 15, 2005). In an online discussion among attorneys on a list serve, a request was made for an expert witness, a recommendation was given in response, and a third comment criticized the referred expert.

Participating on the list serve (though quiet and only lurking during this interchange) was a judge who was scheduled to hear the case in which the witness was to testify. The ethics issue was clear: Was this an ex parte communication?

The bar held that that particular communication was not ex parte but was more like a letter to the editor, since no case was identified. Even so, the opinion emphasized that communications must not reveal facts about a matter that are intended to be confidential or that would impact the matter.

To quote the very relevant passage: "Since one can never know who might read or react to e-mail posted on the Internet, and because it is likely that judges will be included in Listservs or other open communication lists, it is incumbent upon attorneys to avoid including any confidential or private information in a Listserv or other Internet posting that could be identified to a particular case or controversy."

Judicial impartiality is essential to respect for the law. Anything that calls it into question, however well intentioned, is too great a danger.

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