Judges and Lawyers Must Exercise Caution as Facebook “Friends”

by Patrick T. Barone

Patrick T. Barone is an adjunct professor at Cooley Law School where he teaches "Drunk Driving Law and Practice."  Mr. Barone is also the co-author of two books on DUI-related issues, including Defending Drinking Drivers (James Publishing), a well-known and highly respected multi-volume national legal treatise.  He is a frequent lecturer on trial practice and drunk driving defense tactics. He can be contacted on the web at: www.baronedefensefirm.com.

Lawyers often use Facebook to promote their professional standing.  This usually includes “friending” other lawyers, and posting status updates such as photos or videos of training events they have attended, photos of the lawyer with a judge, announcing successful verdicts, and generally commenting on legal affairs and pending cases.  According to the ABA, forty percent of judges have Facebook pages, so lawyers often “friend” judges, and judges also “friend” lawyers.  This reciprocal “friending” can cause a plethora of problems, including an apparent conflict of interest, especially when a prosecutor and a judge have become friends.

 While there appears to be no opinion directly on point in Michigan, several states have limited or severely restricted reciprocal Facebook “friending” between lawyers and judges.  For example, Florida has found that proposed “friendships” between lawyers and prosecutors would violate the ethics expected of the judiciary.1

 In the JEAC opinion, the Florida Supreme Court indicated that when a judge identifies lawyers who may appear in front of him or her as a “friend” on the judge's Facebook page and permits those lawyers to identify the judge as a “friend” on their pages, this practice may violate Judical Canons of Ethics 2B which states "[A] judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge."

 However, Florida stopped short of an absolute preclusion of reciprocal “friending.”  The Florida Supreme Court indicated that in order to fall within the prohibition of Canon 2B, three elements must be present:  (1) The judge must establish the Facebook page; (2) the judge must have the ability to nominate or accept friends, and the friends must have the ability to reciprocate; (3) such reciprocal “friending” must be communicated to others. The Florida Supreme Court believed that it is the selection and communication process that violates Canon 2B, because the judge, by so doing, conveys or permits others to convey the impression that they are in a special position to influence the judge.

 Not all states are in complete agreement with Florida’s very conservative position.  Ohio for example, takes a similar view, but allows reciprocal “friending” so long as doing so does not erode the public confidence in the judge’s impartiality.  The Ohio Supreme Court’s Board of Commissioners on Grievances and Discipline specifically indicates a judge must avoid impropriety or the appearance of impropriety, must not engage in ex parte communication, must not investigate matters before the judge, must not make improper public statements on pending or impending cases, and must disqualify from cases when the judge has personal bias or pre-judice concerning a party or a party’s lawyer or when the judge has personal knowledge of facts in dispute.”2

 In North Carolina, a judge received a public reprimand for social networking misconduct.3  That case involved child custody dispute.  While the case was pending, the judge and the father’s counsel became Facebook “friends,” and thereafter exchanged relatively innocuous ex parte statements. Further, the North Carolina judge used an internet site to perform his own investigation of the mother.  The judge did not disclose to counsel or the parties during the four days of trial that he had conducted independent research on the mother or visited the mother’s website.  The North Carolina Judicial Standard Commission concluded that the judge had ex parte communications with a party’s counsel in a matter being tried before him and that the judge was influenced by information he independently gathered by viewing a party’s website while the hearing was ongoing, even though the contents of the site were never offered or entered as evidence.  The judge’s misconduct included “failure to personally observe appropriate standards of conduct to ensure that the integrity and independence of the judiciary shall be preserved (Canon 1), failure to respect and comply with the law (Canon 2A), failure to act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (Canon 2A), engaging in ex parte communication with counsel and conducting independent ex parte online research about a party presently before the Court (Canon 3A(4)).  Judge Terry’s actions constitute conduct prejudicial to the administration of justice that brings the judicial office into disrepute”4

 The Ethics Committee of the Kentucky Judiciary has indicated that, with certain considerations, a judge may participate in internet-based social networking sites, including Facebook.  However, when doing so a judge must comport with the Code of Judicial Conduct, which includes avoiding ex parte communications, disclosing the relationship where otherwise appropriate, and being sure not to convey the impression that the judge’s friends are in a special position to influence the judge.5  The Kentucky committee also stated that “pictures and commentary posted on sites which might be of questionable taste, but otherwise acceptable for members of the general public, may be inappropriate for judges.”

 In New York, a “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.  In some ways, this is no different from adding the person’s contact information into the judge’s Rolodex or address book or speaking to them in a public setting.  But, 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.  A judge must, therefore, consider whether any such online connections, alone or in combination with other facts, rise to the level of a ‘close social relationship’ requiring disclosure and/or recusal.”6

 Because of the possible appearance of impropriety, a judge should be very cautious when considering whether or not to become “friends” with a lawyer, particularly a lawyer who litigates before the Judge.  The same is true of lawyers, who also must avoid the appearance of impropriety.  Because of these difficulties, the best policy may be for lawyers and judges to avoid becoming Facebook “friends” altogether.



1. See State of Florida Supreme Court Judicial Ethics Advisory Opinion Number: 2009-20 (Nov. 17, 2009).
2. Ohio Supreme Court’s Board of Commissioners on Grievances and Discipline, Opinion 2010-7 (Dec. 3, 2010).
3. See Public Reprimand of Terry, North Carolina Judicial Standards Commission, Inquiry No. 08-234, April 1, 2009.
4. Id. and N.C. Const. art IV, § 17 and N.C.G.S. § 7A-376(a).
5. Ethics Committee of the Kentucky Judiciary, Formal Judicial Ethics Op. JE-119 (2010).
6. New York, Advisory Committee on Judicial Ethics, Op. 08-176 (2009).