Friedman to judges and lawyers: don’t “friend” or “tweet” one another!

Ohio is one of the first states to address the use of social networking by judges. As explained by the Ohio Supreme Court on its web site, an opinion issued 2 days ago [embedded below] by the Ohio Board of Commissioners on Grievances & Discipline “advises judges that social media use is permitted but must be done with caution, and it offers wide ranging, specific guidance to judges on how to navigate the new waters of social media without violating judicial canons that require judges to avoid even the appearance of bias or impropriety.”

My reaction to the opinion — that judges ought to avoid entirely engaging in social media communications with anyone who is or may be a lawyer or a litigant in cases before them — is one people close to me would describe as “paranoid.” Perhaps I’m just risk averse. I think, though, that I’m principally concerned with integrity.

The issue is one that pertains to what are known as “ex parte communciations” — communication between a lawyer or a litigant with the judge without the presence or participation of the adversaries to the lawsuit in which the lawyer or litigant is appearing before the judge. Ex parte communications, except under very limited circumstances all of which ensure notification to the adversaries as soon as practicable, are absolutely forbidden. Our legal system is founded on its adversary nature — not in the sense that it requires fighting but, rather, in that it tries to ensure the voices relevant to the dispute all have equal access to the judge. If my adversary communicates with the judge, I have the opportunity to judge whether it’s worthy of a response and how to respond. We don’t leave to the judge to decide whether I should or can respond — the system ensures I make that decision.

The importance of avoiding ex parte communications was brought home to me in law school by the professor who was my supervising attorney in the clinic I was part of. I was representing a child as guardian ad litem in a child abuse and neglect case in family court in Flint, Michigan. The entire scene was grim — it was 1983, and Michigan had started the precipitous economic descent it suffered at the hands of the auto industry. Unemployment in Flint was through the roof (even in 2010 terms). Abuse and neglect claims had increased. That day it was freezing and pouring rain.

After our hearing, my professor/supervisor and I stood sheltered in an entranceway to the courthouse, hoping the rain would abate a bit so we could make it to our car without getting to0 rain-soaked. As we stood there, the door opened and the judge before whom we’d just appeared stepped out, smiled, and started speaking with us, obviously intent on the same endeavor we were — waiting out the rain in the doorway. My professor immediately wished the judge a good day and, grabbing my arm, led us out into the deluge. When we’d made it to the car I asked her what in the world she had been thinking. She responded, “You do not communicate with a judge without the other side present. It’s wrong!”

It makes perfect sense to me. If the other side has an opportunity to communicate with the judge without my knowledge, how am I supposed to judge what I should let the judge know? Unfortunately, some important people seem to have underestimated the fundamental importance of this rule. Justice Scalia seems not to have worried that hunting with Dick Cheney might be deemed a compromise of the integrity of his court judging a case in which Cheney was a party. Justice Thomas’s willingness to speak before and maintain other relationships with conservative groups with a stake in cases before the Supreme Court are notorious.

And now comes the Ohio Supreme Court suggesting that as long as a judge is really careful he can communicate via social networks with people who are litigating cases in his court. I think it stinks. I would tell a judge not to allow access via social networks to litigants or potential litigants. And I’d tell any lawyer to stay away from networking with a judge before whom he will or may appear.

Incidentally, I don’t think the Ohio Supreme Court’s “guidance” really is all that helpful anyway. Essentially, the guidelines leave to the judge the determination of what is and is not appropriate, acknowledging there are no “bright lines” distinguishing between the two:

• To comply with Jud. Cond. Rule 1.2., a judge must maintain dignity in every comment, photograph, and other information shared on the social networking site.
• To comply with Jud. Cond. Rule 2.4(C), a judge must not foster social networking interactions with individuals or organizations if such communications erode confidence in the independence of judicial decision making.
• To comply with Jud. Cond. Rule 2.9 (A), a judge should not make comments on a social networking site about any matters pending before the judge – not to a party, not to a counsel for a party, not to anyone.
• To comply with Jud. Cond. Rule 2.9 (C), a judge should not view a party’s or witnesses’ pages on a social networking site and should not use social networking sites to obtain information regarding the matter before the judge.
• To comply with Jud. Cond. Rule 2.10, a judge should avoid making any comments on a social networking site about a pending or impending matter in any court.
• To comply with Jud. Cond. Rule 2.11 (A)(1), a judge should disqualify himself or herself from a proceeding when the judge’s social networking relationship with a lawyer creates bias or prejudice concerning the lawyer or party. There is no bright-line rule: not all social relationships, online or otherwise, require a judge disqualification.
• To comply with Jud. Cond. Rule 3.10, a judge may not give legal advice to others on a social networking site.

Social Networking by Judges, Board of Governors of Grievances and Discipline, Ohio Op_10-007, 12-3-10

Don’t “friend” judges!

I write again and again about how changing technologies clash with law based on old technologies, but this is a particularly appalling example. In North Carolina, Judge B. Carleton Terry, Jr., who was presiding over a custody dispute, became a Facebook friend with Charles A. Schieck, an attorney for the father of the child whose custody was the subject of the dispute. As the Public Reprimand issued by the North Carolina Judicial Standards (pdf) recounts, before the matter was resolved, the Judge checked Schieck’s Facebook account and noted that Schieck had posted a question about what he would have to prove to prevail in the custody dispute. Then,

Judge Terry posted on his “Facebook” account [that] he had “two good parents to choose from” and [that he] feels that he will be back in court,” referring to the case not being settled. Schieck then posted on his “Facebook” account, “I have a wise Judge”.

Our adversary system is founded on there being an adversary. Communications between one party and the judge without the presence of the other party (“ex parte” communications in the jargon of the law) are, therefore, forbidden (except under exceptional circumstances). I remember in law school standing with my clinical supervisor in the doorway of a courthouse in Flint, Michigan, where we’d just attended a hearing for a client I was representing. It was pouring rain, we didn’t have an umbrella, and we’d decided to wait out the storm in the shelter of the doorway. A minute later the judge we’d just appeared in front of walked out, and stood next to us, smiling and saying hello. My supervisor grabbed my arm, pulled me out into the rain, and walked with me to her car. I asked what was going on, and she explained: “We can’t talk to the judge!” I got it. Getting soaked to the skin in the only suit I owned was better than risking an ex parte communication with the judge.

Judge Terry also did research online on the mom in the custody dispute without telling the parties.

Don’t befriend judges on Facebook!