When is a friend too friendly? When it comes to judges, the Florida Supreme Court has agreed to weigh in.
Two of the state’s appellate districts have taken opposing positions on the issue of whether a judge may be Facebook friends with lawyers who appear before them. One court was unperturbed by such a casual and public connection, while another concluded judges and lawyers appearing before them may never ethically “friend” one another, on the grounds that an outside observer might question the judge’s impartiality regardless of any other evidence about how close (or distant) that relationship might be.
As Raymond McKoski, a retired Illinois judge, argued in a column for the Orlando Sentinel, this automatic prohibition does not apply to friendships conducted in real life. It also ignores the variety of ways in which users engage with Facebook. On Instagram and Twitter, connections are called “followers.” On LinkedIn, they’re called “connections.” But on Facebook, they happen to be called “friends,” even if you have never met those connections in person, or shared a meal with them, or told them anything you wouldn’t tell a stranger when making small talk.
As the 3rd District Court of Appeals found in ruling that Facebook friendships are not automatically impermissible, a Facebook “friend” may or may not be a traditional friend: “A random name drawn from a list of Facebook ‘friends’ probably belongs to a casual friend; an acquaintance; an old classmate; a person with whom the member shares a common hobby; a ‘friend of a friend’’; or even a local celebrity like a coach. An assumption that all Facebook ‘friends’ rise to the level of a close relationship that warrants disqualification simply does not reflect the current nature of this type of electronic social networking.”
Of course, sometimes a Facebook friend is a real friend. And no one should feel that the judge hearing his or her case is ruling on the basis of something other than the case’s merits. So when is a Facebook friendship between a judge and a lawyer who appears in that judge’s court too friendly?
Let’s start from the premise that judges are people, and like everyone else, they have both personal and professional lives. They attend private functions, join groups like the P.T.A., and participate in religious organizations. They also attend professional conferences and continuing education classes; sometimes they even speak or teach at such events. Lawyers, likewise, have both personal and professional lives. Sometimes these will intersect with those of local judges.
By itself, none of this is a problem. We don’t object if a judge registers as a member of a political party, and we don’t expect judges to recuse themselves if lawyers appearing before them are members of the same party or, perhaps more pertinently, the opposing one. In these divisive times, a lawyer’s past advocacy of, say, candidate Donald Trump might test the objectivity of a judge who is a committedly progressive Democrat; still, we expect judges will put aside personal feelings in the interest of fairness to parties who come before the court.
After all, lawyers usually have no personal stake in the litigation. They are simply there to advocate for their clients. Good judges can and do separate personal from professional all the time.
So when does a personal connection cross the line? Fairness dictates that judges consider only the arguments and evidence shared with both parties, either in court or in chambers. What really calls a judge’s impartiality into question is a situation where one party has access to a judge in a channel not available to his or her opponent. This is why, in almost all circumstances, judges avoid ex parte communication.
So it seems to me that a test of questionable contact is whether a fair-minded and disinterested observer could believe that a judge’s personal relationship might give rise to opportunities for such off-the-record communications.
Many social media networks have private messaging features that parties could conceivably use for this purpose. Then again, so do telephones. Many users use Facebook Messenger in lieu of, or interchangeably with, text messaging. We don’t demand that judges keep their phone numbers unlisted. We just expect them to reject inappropriate communications.
LinkedIn has a messaging feature, but most people use the platform purely for professional reasons. Facebook, on the other hand, predominantly hosts content relating to users’ personal lives. A public Facebook connection really should not give rise to an automatic disqualification of a judge, even if the label attached to that connection is “friend.”
But if the relationship is such that a judge and attorney are exchanging private messages on Facebook, or making posts available to one another that are not visible to the general public, then it is reasonable to infer that the judge has crossed a line.
While some judges avoid the problem by simply choosing not to engage with lawyers on social media, I do not think it should be impermissible for a judge to have such connections at all. But when an attorney who enjoys nonpublic access to a judge comes to court, that judge probably owes it to the other party to step aside.
Will the Florida Supreme Court get it right? It probably depends on how social media savvy the justices happen to be (or whether they feel free to talk about the issue with their children and grandchildren). But they will probably bear in mind that judges and lawyers live in the real world, and today that means all sorts of public and private connections online and off. In the end, it will always come down to a judge’s integrity and sense of fair play.