Facebook has been available to the general public for more than a decade; before that it was MySpace and after that it was Twitter, Snapchat, Instagram, and a bunch of apps my 9-year-old who doesn’t even have a phone seems to know about but I don’t. Lawyers have been using these platforms to varying degrees since their inception, both personally and professionally. Judges, too—here in Wisconsin judges are elected and use social media for campaigning and networking, as well as for keeping track of family and posting pictures of their dinner, like everyone else. (I note that due to a recent rule change, California judges can’t recommend or criticize businesses, products, or services on social media if it is reasonably likely that the judge can be recognized as a judge. Here, well, it’s different.)
Guidance for ethical use of social media is evolving for both lawyers and judges. Right now, the advice I tend to give to lawyers regarding social media is, if you can’t do it offline, don’t do it online. You’re not allowed to misrepresent your services on a billboard, so don’t misrepresent them on your Facebook page.
I’ve been watching In re the Paternity of B.J.M for awhile. This case is not disciplinary, but a custody and placement matter. At a pivotal time in the proceedings, a judge accepted a “friend” request from one of the litigants; the litigant reacted (“liked” or otherwise) to several of the judge’s posts and made a few comments, as well as posted generally about domestic violence (which was at issue in the case). This “friendship” was never disclosed to the other party by either the litigant or the judge. The judge entered an order, and the other party later found out about the Facebook interaction and appealed.
Today, the Supreme Court of Wisconsin released an opinion affirming an the Court of Appeals decision, which reversed the judge’s custody order and remanded the case for determination by a different judge.
The Court, after weighing a variety of factors, held that the interactions (starting from when the judge took the affirmative step of accepting the friend request during a sensitive time in the litigation, and continuing through the remaining interactions and the judge’s failure to disclose any of them) created too much of a risk of bias. As with the Court of Appeals, the Supreme Court did not say anything that would prohibit social media interaction between judges and litigants (or attorneys) or otherwise create any bright-line rules; this was a fact-intensive analysis.
A brief concurrence by Justice Rebecca Dallet and joined by Justice Brian Hagedorn (starting on page 60 of the linked PDF/paragraph 100) notes this lack of either a bright-line rule or an ethics opinion, and points out judges can benefit personally and professionally from social media, as it keeps them in touch. The concurrence refers judges and everyone else to ABA Formal Opinion 13-462, which permits judges to use social media if they take due care and avoid conduct that would call into question the judge’s integrity or impartiality.
Another concurrence (starting on page 37, paragraph 65) by Justice Annette Ziegler, takes a stronger position, and cautions judges to “avoid using social media such as Facebook unless significant safeguards are in place to avoid a situation like that present here. If a judge chooses to participate in social media, then additional——not fewer——precautions must be taken.” (paragraph 67). This concurrence points out that here, the acts that gave rise to the problem were actually primarly those of the third party—the litigant. The judge really did not do anything other than accept the “friend” request.
A judge who uses electronic social media subjects himself or herself to the risk of misuse of a social media relationship by a third party. I am concerned that no matter how cautious and attentive the judge may be, a judge who uses electronic social media may expose both the judge and the judiciary as a whole to an appearance of bias or impropriety. Accordingly, I strongly urge my colleagues on the bench to weigh the advantages and disadvantages of using electronic social media like Facebook.
So where does this leave lawyers? I think even though this opinion concerned a litigant and not a lawyer, this opinion suggests to me that lawyers, if they are not connected already with judges on social media, should refrain from striking up a friendship while a case is pending; if they are already connected when the case started, they should avoid interacting in any way that could be construed as prohibited ex parte contact (which would be different based on whether the case was sitting with the next court appearance expected a year from now versus the eve of trial) just as they would offline.
A social media connection is not automatically grounds for recusal or even disclosure to the other side; as with in-person interactions the type and closeness of the relationship will determine whether the judge should disclose the relationship or bow out.
And as an aside, while neither lawyers nor judges are prohibited from posting “97% of you will scroll right by but the 3% of you who care about saving the whales/curing cancer/homeless veterans will like and share this” memes whether mid-suit or otherwise, I (and I am sure many of my peers) will judge you for it. So you’re on notice.