Legal Commentary

Hey, Don?t Worry ? The Judge is My Friend!

By David Post

The Florida Supreme Court has issued a judicial ethics opinion in which it answered the question

?Whether a judge may add lawyers who may appear before the judge as ?friends? on a social networking site, and permit such lawyers to add the judge as their ?friend.?

in the negative.

The Committee concluded that allowing this ?friending? practice would violate Canon 2B of the Code of Judicial Ethics:

?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.?

The Committee reasoned that . . .

. . . listing lawyers who may appear before the judge as ?friends? on a judge?s social networking page reasonably conveys to others the impression that these lawyer ?friends? are in a special position to influence the judge. This is not to say, of course, that simply because a lawyer is listed as a ?friend? on a social networking site or because a lawyer is a friend of the judge, as the term friend is used in its traditional sense, means that this lawyer is, in fact, in a special position to influence the judge. The issue, however, 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. The Committee concludes that such identification in a public forum of a lawyer who may appear before the judge does convey this impression and therefore is not permitted.

It?s an interesting question. The Opinion does strike me as a bit of over-kill (as it did this commentator at legalethics.com). But it?s a nice illustration of the changing contours of the public-private boundary these days. The practice of lawyers and judges actually being friends, of course, can?t be prohibited; if lawyer Jones and Judge Smith played golf last weekend, well, bully for them. And the fact that they did so in a public place and could therefore show up in the newspaper wouldn?t give anyone grounds for complaint. But there is something different about being listed as a ?friend? on a publicly-accessible website. It all depends on that assumption about what such a designation ?reasonably conveys to others,? and while I?m not at all sure the Florida Supreme Court has a terribly good handle on that, I?m not at all sure that I do, either.

Full post as published by The Volokh Conspiracy on February 11, 2010 (boomark / email).