Dr. Seuss, Cheese and Social Media, Part III: Ethical Issues Involving Attorneys and Their Judges

 

"I am the Judge. I speak for the laws!
I speak for the laws, for the laws have no tongues.
And I'm asking you, sir, at the top of my lungs,"
(He was very upset as he shouted and puffed)
"Stop friending me, lawyers!  Enough is enough!" 

Part One of this article discussed how an attorney's use of social media can lead to breaches of confidentiality, conflicts of interest, unintended relationships, and improper advertising.  Part Two of this article then discussed misrepresentations made to third parties on social media and violations of one's duty of candor to the court. 

Since all good things come in threes, we now launch into our final Part Three:  corresponding with a judge in a way that gives rise to the appearance of impropriety, and making inflammatory statements about lawyers or judges.

1.  Assisting in Violations of Judicial Rules of Conduct. Attorneys face ethical quagmires when corresponding with judges on social media, since their correspondences with the judge can be found to "assist" the judge in conduct that violates judicial rules:

  • ABA MPC 8.4(f): Attorneys cannot knowingly assist a judge in conduct that is a violation of applicable rules of judicial conduct or other law.

Does a judicial presence on Facebook, Twitter or other social media, violate rules of judicial conduct? Generally, the answer appears to be no:

"Providing that the judge otherwise complies with the Rules Governing Judicial Conduct, he/she may join and make use of an Internet-based social network . . . [but] should exercise an appropriate degree of discretion in how he/she uses [the network, and must] stay abreast of the [privacy] features[.]"

NY Adv. Comm on Judicial Ethics, Op. 08-176. Even Supreme Court Justice Stephen Breyer has confessed to being an active user of Twitter and Facebook when he testified on Capitol Hill on April 14, 2011. But he turned down numerous requests from attorneys (and others) who wish to follow and friend him, preferring to stick with family and close friends.

The problem arises when considering who a judge can -- and cannot -- friend. Can a judge friend an attorney who might appear before him, and vice versa? It depends on who you ask.  In Kentucky, New York, and South Carolina, the "designation of a 'friend' on a social networking site does not, in and of itself, indicate the degree of intensity of a judge's relationship with the 'friend,'" so the judge can friend who he or she wishes without any appearance of impropriety. On the other side of the coin is Florida, Fla. Sup. Ct. Judicial Ethics Adv, Comm. Op. 2009-20:

The issue . . . is not whether the lawyer actually is in a position to influence the judge, but instead whether the proposed conduct, the identification of the lawyer as a 'friend' on the social networking site, conveys the impression that the lawyer is in a position to influence the judge . . . identification in a public forum of a lawyer who may appear before the judge does convey this impression and therefore is not permitted.

The risk of impropriety -- or even the appearance of it -- is very real. Ex parte communication between judges and attorneys can result in a mistrial. Even a simple Facebook 'Poke' could be problematic.

As one example, North Carolina Judge B. Carlton Terry, Jr. friended defense counsel in a case and discussed the case with him on Facebook, including the weight to be given testimony that one spouse had been unfaithful. "How do I prove a negative?" the defense attorney  asked. The judge provided advice and the attorney called him a "wise judge". The plaintiff's lawyer found out and moved both for a new trial and the judge's disqualification. The judge removed himself from the case and the plaintiff got a new trial. The judge also earned a reprimand from the state Judicial Standards Commission. The attorney, who assisted the judge in the reprimanded conduct, could probably have been sanctioned for violation of Rule 8.4(f) as well.

As a result of this incident and others, judges have begun to use caution when engaged in social media. Most  (a) tend to friend everyone who asks, in order to avoid the appearance of impropriety, (b) not friend attorneys who may appear before them; or (c) only friend family or close friends.

2.  Questionable Professional Conduct (and Insulting Judges).  Even when judges themselves are not online, comments about them in cyberspace can lead to ethical violations. Much like the "catch-all" Federal Rule of Evidence 807 residual exception to hearsay, the ABA rules also capture questionable conduct that, while not fitting neatly into a specific rule, still "smells funny":

  • ABA Model Rule 8.4(d): Attorney cannot engage in professional conduct prejudicial to the administration of justice.

This rule can be used by itself, or in conjunction with pretty much any other rule for some added bite. Say, for example, that as the lawyer for Cheese, Inc., who is suing a bunch of cheese manufacturers, pizza parlors and restaurants for making and using cheese that infringes a particularly cheesy patent of yours, you have become frustrated with the judge's attitude. He is constantly overruling your objections and sustaining the other side's. Clearly, the judge is lactose intolerant and has never partaken in the deliciousness that is fine cheese. Needing an outlet, you tweet to your 343 followers that the judge is "an incompetent cheese-a-phobe whose rulings stink more than a Roquefort left to rot in the sun." Hey, the First Amendment, right? Wrong:

  • ABA Model Rule 8.2: Attorney cannot make false or reckless statements regarding the qualifications or integrity of a judge.

Attorneys in Broward County Court, Florida learned that just this type of conduct can be a violation of both ABA MPC rules. Specifically, local attorneys there frequent JAABlog, a local but private forum. One attorney, Sean Conneryway, logged onto the site and questioned the procedure of a certain judge, calling her by name, and referring to her as an "evil, unfair witch" and "seemingly mentally ill." Conway also declared her "clearly unfit for her position and knows not what it means to be a neutral arbiter." While most of this could easily be classified as hyperbole, the Florida bar found him guilty of FIVE ethics violations, including the Florida version of these two Rules. While Double-O Conway argued that he was simply exercising his First Amendment right, this argument netted him a public reprimand and $1,250 fine. See Florida Bar SC08-326 (Fla Jan 22, 2009).

By contrast, another example took place during a fee dispute following a routine employment lawsuit against UPS. UPS and its attorneys at Paul Hastings, submitted as evidence several of the plaintiff-attorney's posts on the private California Employment Lawyers' Association (CELA) listserv concerning the trial of his client, a UPS employee. These included a post in which the attorney criticized the district court judge in the trial as "defense-biased from the [MSJ] hearing forward," and another in which he stated that:

Amazingly, my colleague and I caught her [the judge] signaling to defense counsel to try to elicit objections during our examinations. Perhaps the judge did not like me or my personality, but I have never had an experience like this in 40 years of lawyering.

CELA requested that Paul Hastings be referred to the state bar ethical committee for submitting stolen evidence, since the listserv was a closed forum and the firm knew that CELA was asserting privilege. The court found it  "inappropriate" for Paul Hastings to publicly disclose the material and held that doing so could pose a "security risk" to the judge at issue. While silent on potential rule-based violations, under these facts ethical violations of Rules 8.2 and 8.4(d) could be possible for the plaintiff-attorney, and perhaps a Rule 8.4(d) violation for the law firm. 

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In sum, as noted in Parts I, II and III of this article, the potential ethical violations faced by attorneys (and judges!) as a result of improper use of social media, are many. As social media grows increasingly common and complex, the  issues will only increase.

Nor are attorneys, their clients, and judges the only ones in the legal system affected. Even jurors face sanctions over improper use of social media. For example, juror Hadley Jons was recently punished for posting a "Guilty" verdict on Facebook before the verdict was even announced in court. The posting came to light only because the defense attorney’s son, who was working in his mother’s law office, checked the jurors against Facebook. The judge removed the juror the following day, and judge ordered her to write a five-page essay about the constitutional right to a fair trial.

"Friends" in High Places: Social Networks, Lawsuits and Friending Judges

 

"You ain't never had a friend like me." Lyric by Howard Ashman from Disney’s Aladdin,© 1992

     Wanna be friends with a judge? Well, he might end up “friending” you on Facebook as part of an in-camera review of your page, if something you post may be relevant to a lawsuit.

     Imagine that you are a middle management corporate employee who has finally (urged on by your kids) joined the 21st century and launched a personal Facebook page.  And then you friended a bunch of people, including some neighbors, family, and some of your fellow employees and supervisors. Why not?  After all, you have a pretty good relationship with them.

     Over the next few months, the following occurs:

  • You post that your supervisor is an idiot who doesn’t pay any attention to what’s going on in the office.  The next day some receivables go missing, and now the boss suspects you. How did he find out?  Perhaps you friended him and simply forgot; perhaps you friended another employee who is friends with your boss.  Or perhaps you simply forgot to change your privacy settings.
     
  • You are sued by an employee who you friended a while back.  Why? You fired him two weeks ago because the employee’s Facebook page showed him skiing on the day he called in sick.
     
  • You posted derogatory comments about your horrible neighbors.  A week later someone vandalized their house, and now they are blaming you.

     According to an article in the DRI Defense Bar by Michael Goodfried and Martha Dawson, Electronically Stored Information (“ESI”) contained on a party's social networking site can be subject to discovery if it relates to the issues in the litigation. In EEOC v. Simply Storage Mgmt., No. 1:09-cv-1223-WTL-DM, 2010 WL 3446105, at *3, (S.D. Ind. May 11, 2010), the court stated that discovery of social networking sites "requires the application of basic discovery principles in a novel context", and that the challenge is to "define appropriately broad limits . . . on the discoverability of social communications."

     Once it’s been determined that the content on the social networking site is subject to discovery, the next element is to determine which particular content is discoverable, based on the court’s consideration of the relevance of the requests within the scope of Rule 26 - or whether the requesting party is on a fishing expedition. “The court may choose to order the user to provide access to their entire profile, or it may order access to a limited portion of the content, such as wall postings available to all of the user's contacts, or messaging with particular individuals. In at least one instance, the court has offered to provide an in camera review by becoming "friends" with the user in order to review the private content for relevancy, before making a decision as to whether the other side could see it. Barnes v. CUS Nashville, No. 3:09-cv-00764, 2010 WL 2265668, at *1 (M.D. Tenn. June 3, 2010).”

    Shazzam! Instant friendship with a judge!

     Courts may also examine the privacy policies of the social networking sites themselves. Many of these sites explicitly state that they do not guarantee the privacy of user content. For example, Facebook's privacy policy, as of October 5, 2010, states that "some of the content you share and the actions you take will show up on your friends' home pages and other pages they visit" and that Facebook may "disclose information pursuant to subpoenas, court orders, or other requests (including criminal and civil matters) if we have a good faith belief that the response is required by law." See Facebook's Privacy Policy. In Romano v. Steelcase, 907 N.Y.S. 2d 650, 655 (2010), the court went so far as to state that the plaintiff has no reasonable expectation of privacy "notwithstanding her privacy settings" because Facebook and MySpace did not guarantee "complete privacy."

     So before you post that your assistant is a moron and get sued for defamation, consider whether you really want to friend a judge.

     The Social Network…coming soon to an in-camera review in a courtroom near you.