FLORIDA SUPREME COURT
Judicial Ethics Advisory Committee
Opinion Number: 2010-06
Date of Issue: March 26, 2010
(1) Whether the Code of Judicial Conduct requires a judge who is a member of a voluntary bar association to “de-friend” lawyers who are also members on that organization’s Facebook page and who use Facebook to communicate among themselves about that organization and other non-legal matters.
(2) Whether a judge may allow an attorney access to the judge’s personal social networking page as a “friend” if the judge sends a communication to all attorney “friends” or posts a permanent, prominent disclaimer on the judge’s Facebook profile page that the term “friend” should be interpreted to simply mean that the person is an acquaintance of the judge, not a “friend” in the traditional sense.
(3) If a judge accepts as “friends” all attorneys who request to be included or all persons whose names the judge recognizes, and others whose names the judge does not recognize but who share a number of common friends, whether attorneys who may appear before the judge may be accepted by the judge as “friends” on the judge’s Facebook page.
For purposes of this opinion, inquiries from two different judges about similar actions have been consolidated.
One of the inquiring judges proposes a disclosure in the “About Me” section of the judge’s Facebook profile page. The judge proposes to say that “I will accept anyone whose name I recognize as a friend, as well as others who I don’t recognize but who share a number of common friends.” The judge proposes to explain that the term “friend” does not mean that the judge has a close relationship with the person, or that the judge would even recognize the person. The judge proposes to add that the term “certainly in no way means that the person [listed as a ‘friend’] is in any position to influence [the judge’s] decision in any case or in any manner.”
The other inquiring judge proposes to accept all lawyers who request to be accepted as “friends”, and also proposes to communicate to lawyers that the term “friend” is, in the judge’s opinion, a misnomer and should be interpreted solely as an acquaintance and should not be interpreted in a traditional sense On this basis, the judge asks whether lawyers who may appear before the judge may be accepted as “friends” on the judge’s social networking page.
One of the inquiring judges is also a member of a voluntary bar association. That voluntary bar association uses Facebook as a means of communication among members about the organization and other non-legal matters. The judge queries whether the judge must “de-friend” lawyers who are also members on that organization’s Facebook page.
The ethical concern expressed by the majority in Fla. JEAC Op. 09-20 centered around whether a judge, by accepting a lawyer who may appear before the judge as a “friend” on the judge’s Facebook page or other social networking site, conveys the impression to the public that the lawyer so recognized is in a special position to influence the judge, in violation of Canon 2B of the Code of Judicial Conduct. Canon 2B states: “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.” Fla. Code Jud. Conduct, Canon 2B (emphasis supplied).
A majority of the Committee opined, in Fla. JEAC Op. 09-20, that accepting lawyers who appear before the judge on a social networking page such as Facebook would convey the impression to members of the public that the lawyer was in a special position to influence the judge. Accordingly, the Committee opined that the inquiring judge should not accept lawyers who appear before the judge as “friends” on Facebook.
A minority of one Committee member, in Fla. JEAC Op. 09-20, expressed the view that the designation of friends on a social networking site did not convey the impression which Canon 2B prohibits, because social networking is now so ubiquitous that “friends” in that context are only contacts or acquaintances, and not friends in the traditional sense, i.e., a person attached to another person by feelings of affection or personal regard.
Since the issuance of Fla. JEAC Op. 09-20, the Committee has received inquiries from judges and judicial candidates on related subjects, including those which are answered in this opinion. Also, the opinion has received widespread public attention and comment. The Committee has, as a result, thoroughly and thoughtfully reconsidered Op. 09-20 and the issues raised by these inquiries. As reflected in this opinion, members of the Committee hold differing views on the issue. The majority opinion expressed here represents the views of nine members of the Committee. The minority opinion represents the views of three members.
The Committee hopes that the differing views expressed in this opinion, together with the continuing growth of social networking and other forms of interaction and communications among the bench, the bar, and members of the public, will encourage a heightened recognition of the importance of Canon 2B and a vibrant dialogue regarding its role in fostering the public’s confidence in the independence and impartiality of the judiciary.
II. Association Facebook Pages
In Fla. JEAC Op. 09-20, the Committee opined that judicial participation in a “subject matter” forum is ethically permissible under Canon 2B. All Committee members continue to agree that because the organization, as opposed to the judge, determines and controls who may have access and participate in that type of social networking site, it is ethically permissible for a judge to be a member of a voluntary bar association’s Facebook page and the judge is not required to “de-friend” lawyers who are also members on that organization’s Facebook page and who use Facebook to communicate among themselves about that organization and other non-legal matters.
To be clear, the Committee interprets the judge’s inquiry to be addressing the organization’s Facebook page and not the judge’s personal Facebook page. First, the Committee does not see how the judge would “de-friend” lawyers who are co-members of the organization’s Facebook page, since it is the organization that controls the acceptance and rejection of “friend” requests. Second, the organization consists primarily, if not exclusively, of lawyer members. Even if the Committee found the contemplated conduct violates Canon 2B, it would be illogical to suggest the judge would remain a member of the organization’s Facebook page and all lawyer members would be “de-friended”. Of course, Op. 09-20 remains applicable to the judge’s personal Facebook page.
Although there is a difference of opinion among members of the Committee with respect to whether or not “friend” status on a social networking page conveys the impression that Canon 2B prohibits, the Committee is unanimous in its opinion that, if such an impression is conveyed in violation of Canon 2B, a disclaimer on the page is not effective to dispel the impermissible message which is conveyed. First, placing a disclaimer on the judge’s social networking site uniquely defining the term “friend” for the purposes of the judge’s page(s) fails to cure any impermissible impression that the judge’s attorney “friends” are in a special position to influence the judge. Next, although the inquiring judge indicates that the proposed disclaimer would be prominent and permanent, there can be no assurance that persons viewing the page would locate it, and if they did locate it, would read it. Further, even if the disclaimer was read, the Committee does not believe that such a disclaimer, as perceived by members of the public, would dispel the message which is conveyed by the presence of lawyers as “friends” on the judge’s Facebook page. The Committee rejects any contention that a judge can engage in unethical conduct so long as the judge announces at the time that the judge perceives the conduct to be ethical.
IV. Acceptance of “Friends”
A. Majority Opinion.
A majority of this Committee continues to believe that Fla. JEAC Op. 09-20 was correctly decided and that judges should not accept requests from lawyers who appear before them to be recognized as their “friends” or contacts on social networking sites.
The majority does not agree that the authorities cited by the minority support the proposition that Op. 09-20 was wrongly decided. The cited opinions each relate to a discrete relationship or friendship between a lawyer and a judge as a potential ground for disqualification. These authorities do not address the unique medium in which internet social networking sites permit the networking and sharing of personal information and experiences among a select and exclusive community, nor do they address Canon 2B and the message which it prohibits.
The minority argues that there is no difference between the conduct that is prohibited by Canon 2B and the disqualification requirements of Canon 3E and that the same test applies under both canons. Yet, this Committee has recognized in prior opinions that a distinction exists in the application of Canon 2B and 3E. In Fla. JEAC Op. 07-07 a majority of the Committee advised the inquiring judge that the judge’s appearance on a billboard for the county library would violate Canon 2B, among others, but the Committee refrained from advising the judge whether such an activity would require disqualification under Canon 3E from cases involving the county.
Canon 2B involves explicitly proscribed behavior: “A judge shall not ….” Canon 3E addresses when a judge shall be disqualified from a proceeding and declares that it shall be anytime “the judge’s impartiality might reasonably be questioned ….” There are innumerable acts a judge should avoid in deference to the judge’s obligations under Canon 2B that would not establish a foundation for disqualification under Canon 3E. Merely because prior decisional law has concluded certain relationships do not justify disqualification, it does not follow that the inquiring judges’ contemplated conduct in accepting lawyers as Facebook “friends” is permissible and not violative of Canon 2B.
The inquiring judges who are responded to in this opinion seek to avoid the impression that the Committee believes is conveyed by this practice by either (i) accepting all persons who the judge either recognizes or who share a number of common “friends” with the judge or (ii) accepting all lawyers who submit a “friend” request. The majority believes that the procedures suggested by the inquiring judges, seeking to create a safe harbor by broadening the net and allowing the acceptance of “friend” requests from any [or almost any] lawyer who practices before the judge, fail to cure the impermissible impression which Canon 2B prohibits.
The first inquiring judge desires to accept all persons who are either recognized by the judge or who share a number of common “friends” with the judge. Although the judge proposes to be more inclusive in the acceptance of “friend” requests than others might be, the process continues to require acceptance or rejection of those who seek to be listed.
The second inquiring judge desires to accept all lawyers who request to be the judge’s “friend”. Again, although the judge proposes to accept all lawyers, the judge does not propose to accept everyone. That decision-making process, of accepting all lawyers who make the request but not others, the majority believes, conveys the impression that Canon 2B prohibits. Further, the judge’s commitment to accept as a “friend” all attorneys who ask to become a “friend” still violates Canon 2B because (1) it still creates a class of special lawyers who have requested this status and (2) these lawyers as a group, in contrast to other lawyers who do not participate in social networking sites or who choose not to ask the judge to accept them as the judge’s “friend”, would appear to the public to be in a special relationship with the judge.
One member of the Committee likened the situation to a hypothetical “town hall” meeting a judge might hold to discuss matters of current interest or even to share personal matters. If the judge positioned himself or herself at the entrance or posted a sign at the entrance, explaining that the meeting was open only to lawyers, or those whom the judge recognized, or those who shared friends in common with the judge, the message of exclusivity and selectivity would nonetheless be conveyed to the public. As explained in Op. 09-20, it is this process of acceptance and rejection, and the right and the practice of selectivity and exclusivity provided by the internet social networking “friend” process, that conveys the impression that Canon 2B prohibits. By contrast, as the Committee explained in Op. 09-20, candidates and others can establish sites which permit persons viewing the site to become “fans”. This process does not implicate Canon 2B because the creator of the site has no control over who may or may not become a “fan.”
Discerning the impression that contemplated judicial conduct conveys to the public is not an exercise which lends itself to precision or quantification. However, the majority believes that Canon 2B should be interpreted and applied in such a manner as to foster the public’s confidence in the independence and impartiality of the judiciary. “A judge must avoid all impropriety and appearance of impropriety. A judge must expect to be the subject of constant public scrutiny. A judge must therefore accept restrictions on the judge’s conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.” Fla. Code Jud. Conduct, Commentary, Canon 2A.
While it is certainly true that mere friendship between a judge and an attorney who practices before that judge, without more, does not create the appearance of impropriety, the majority continues to believe that allowing lawyers who practice before a judge to appear as “friends” on the judge’s Facebook page, having been accepted by the judge for that purpose, conveys the impression to the public what Canon 2B prohibits, i.e., that the lawyer is in a special position to influence the judge. Additionally, the judge’s acceptance of lawyers who practice before the judge as Facebook “friends” might well enable others to convey the impression that they are in a special position to influence the judge. As the majority explained in Op. 09-20, Canon 2B does not suggest that the lawyer must actually exercise any special influence over the judge. It is the conveyance of such an impression which Canon 2B proscribes. The process of acceptance of lawyers as Facebook “friends” conveys this impression and should not be engaged in by judges with respect to lawyers who appear before them.
B. Minority Opinion.
A minority of the Committee believes that Florida Judicial Ethics Advisory Committee Opinion 09-20 was wrongly decided and should be receded from. The minority opines that the identification of a lawyer who is likely to appear before a judge as a “friend” on a judge’s internet social networking site does not violate Canon 2B. Social networking sites have become so ubiquitous that the term “friend” in the internet social networking world does not have the same meaning that it did in the pre-internet age. The term “friend” on social networking sites designates the person so identified as merely a contact or acquaintance. Such an identification does not mean that a person is a “friend” in the traditional sense, which is defined as a person attached to another person by feelings of affection or personal regard.
The minority cites to Canon 2A’s requirement that a judge “avoid all impropriety and appearance of impropriety.” Fla. Code of Jud. Conduct, Commentary to Canon 2A. The test for appearance of impropriety under Canon 2A is “whether the conduct would create in reasonable minds, with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired.” Id.
The minority observes that internet social networking sites are widely used nationally and internationally and that the numbers are growing exponentially daily. Therefore, the minority concludes, a substantial portion of the public readily understands what the term “friend” means on an internet social networking site, and those in the public who do not understand this term as it is used in the internet context, no doubt will quickly be educated by those who do, if the question is raised. Therefore, in the minds of reasonable people with knowledge regarding the use of these social networking sites, identifying a lawyer as a “friend” on a judge’s internet social networking site would not create the perception that a lawyer is in a special position to influence the judge.
The minority further contends that, even if the term “friend” on an internet social networking site means a friend in the traditional sense, which it does not, that relationship without more is ethically permissible. See e.g. Stevens v. American Healthcare Corp. 919 So. 2d 713, 716 (Fla. 2d DCA 2006) Additional facts about the friendship may require the judge to disclose1 the friendship or even to be disqualified2 from hearing cases in which the lawyer is involved. The majority argues that there is a difference between the conduct that is prohibited by Canon 2B and the requirements of Canon 3E. However, the same test applies under both Canon 2B and Canon 3E in this case: Would reasonable persons knowing all the circumstances believe that a judge’s friendship with an attorney places the attorney in a special position to influence the judge or even create the impression that the attorney is in a special position to influence the judge? Long established Florida case law and opinions of this committee establish that friendship with a judge, without more, does not create the appearance of impropriety.
In MacKenzie v. Super Kids Bargain Store, Inc., 565 So. 2d 1332 (Fla. 1990), the Florida Supreme Court in ruling that legal campaign contributions from a lawyer to a judge’s judicial campaign does not require disqualification framed the question of judicial impartiality in two ways: (1) whether a litigant “may reasonably question a judge’s impartiality” and (2) “whether the facts alleged would place a reasonably prudent person in fear of not receiving a fair and impartial trial.” Id. at 1334-35. The Court stated that there are countless factors which may cause some members of the community to think that a judge would be biased in favor of a litigant or counsel for a litigant; for example, friendship, being a member of the same church or religious congregation, neighbors, former classmates or fraternity brothers. Id. at 1338. [Emphasis supplied.] However, such allegations are legally insufficient when asserted in a motion for disqualification. Id. at 1335. The Court’s rationale for this conclusion can be found in part in the following statement, “We cannot operate a judicial system, or indeed a society, on the basis of the factually unsubstantiated perceptions of the cynical and distrustful.” Id. at 1338 (quoting Breakstone, 561 So. 2d at 1164, 1178 (Fla. 3d DCA 1989) (Schwartz, dissenting)). See also Smith v. Santa Rosa Island Authority, 729 So. 2d 944 (Fla. 1st DCA 1998); (“allegations of mere ‘friendship’ with an attorney or an interested party have been deemed insufficient to disqualify a judge”); Adkins v. Winkler, 592 So. 2d 357 (Fla. 1st DCA 1992). Justice Overton in In re Estate of Carlton, 378 So. 2d 1212, 1220 (Fla. 1979). stated, “If friendship alone with a lawyer or member of a firm is a basis for disqualification, then most judges in rural and semi-rural areas and many in metropolitan areas would be subject to disqualification in a large number of cases.”
The minority correctly observes that previous opinions of this Committee have addressed the issue of when a judge should be disqualified and when disclosure is required when an attorney who is a friend of a judge appears before the judge, and the issue has always been decided on the basis of the specific facts raised in the inquiry. See Fla. JEAC Op. 93-17. The minority further observes that there has never been a per se requirement that a judge cannot preside over cases of attorneys or members of the attorney’s law firm3 who are friends of the judge. Fla. JEAC Op. 89-08. The Committee in Opinion 93-56 (receded from in 99-02 to the extent it required a judge to recuse after disclosing a relationship, regardless of the motion’s legal sufficiency) stated that: “The question of when a judge must reveal his close personal relationship with an attorney is very difficult to address. Judges should certainly be aware that close social relationships with attorneys may create an appearance of impropriety. On the other hand, we are of the opinion that judges should certainly not remain socially apart from attorneys.” The Committee has permitted judges to be friends with attorneys who appear before the judge. Fla. JEAC Op. 04-01 (close social relationship of 28 years between a judge and an attorney does not, by itself necessitate disqualification); Fla. JEAC Op. 93-56 (a weekly tennis game with an attorney under certain circumstances may not be necessary to disclose); Fla. JEAC Op. 93-17 (disclosure may be appropriate or necessary if a judge maintains strong social ties with an attorney); Fla. JEAC Op. 09-16 (Not all of a judge’s friendships with attorneys require disqualification, even close personal ones, rather in many cases, disclosure is appropriate).
The minority contends that the logical extension of the majority’s opinion is that judges cannot be friends with any lawyer who appears before the judge since there is no discernable difference between a judge’s friendship with an attorney on a social networking site and a judge having lunch with an attorney, playing tennis with an attorney, or engaging in a myriad of other activities with attorneys who appear before the judge. The majority argues that it is the exclusivity and selectivity that a judge engages in when a judge allows an attorney to be the judge’s friend on an internet social networking site that would convey the impression that the attorney is in a special position to influence the judge. The minority responds that judges who are friends with lawyers and engage in social activities with them are also exercising exclusivity and selectivity. The exclusivity and selectivity by the judge in choosing to spend time and enjoyment with some attorneys and not others is far more apparent than “friendship” in the social networking setting of the internet.
The minority also argues that Fla. JEAC Op. 09-20 may also have unintended consequences. The minority opines that if it is unethical for a judge to have a lawyer who appears before the judge as a Facebook “friend,” then it would be equally unethical for a judge to have as a Facebook “friend” any person who may appear before the judge as a litigant. Facebook “friends” can be hundreds of people, comprising a network of acquaintances who know the judge’s acquaintances, with many of whom the judge may have never personally interacted. This could result in a judge being required to disclose all of the judge’s Facebook “friends” in every case in which the judge presides. The alternative would be for judges not to have Facebook pages.
In re Estate of Carlton, 378 So. 2d 1212 (Fla. 1979); MacKenzie v. Super Kids Bargain Store, Inc., 565 So. 2d 1332 (Fla. 1990); Adkins v. Winkler, 592 So. 2d 357 (Fla. 1st DCA 1992); Smith v. Santa Rosa Island Authority, 729 So. 2d 944 (Fla. 1st DCA 1998); Stevens v. American Healthcare Corp., 919 So. 2d 713 (Fla. 3d DCA 2006).
Fla. Code Jud. Conduct, Canons 2A, 2B, 3E, Commentary to 2A, Commentary to Canon 3E(1)
Fla. JEAC Opinions 89-08, 93-17, 93-56, 99-02, 04-01, 04-35, 07-07, 09-16, 09-20.
The Judicial Ethics Advisory Committee is expressly charged with rendering advisory opinions interpreting the application of the Code of Judicial Conduct to specific circumstances confronting or affecting a judge or judicial candidate.
Its opinions are advisory to the inquiring party, to the Judicial Qualifications Commission and the judiciary at large. Conduct that is consistent with an advisory opinion issued by the Committee may be evidence of good faith on the part of the judge, but the Judicial Qualifications Commission is not bound by the interpretive opinions by the Committee. See Petition of the Committee on Standards of Conduct Governing Judges, 698 So. 2d 834 (Fla. 1997). However, in reviewing the recommendations of the Judicial Qualifications Commission for discipline, the Florida Supreme Court will consider conduct in accordance with a Committee opinion as evidence of good faith. See Id.
The opinions of this Committee express no view on whether any proposed conduct of an inquiring judge is consistent with the substantive law which governs any proceeding over which the inquiring judge may preside. This Committee only has authority to interpret the Code of Judicial Conduct, and therefore its opinions deal only with the issue of whether the proposed conduct violates a provision of that Code.
For further information, contact: Judge T. Michael Jones, Chair, Judicial Ethics Advisory Committee, 190 Governmental Center, M.C. Blanchard Judicial Building, Pensacola, Florida 32502.
Judge Roberto Arias, Judge Robert T. Benton, Dean Bunch, Esquire, Judge Lisa Davidson, Judge Kerry I. Evander, Judge Jonathan D. Gerber, Judge T. Michael Jones, Patricia E. Lowry, Esquire, Judge José Rodriguez, Judge C. McFerrin Smith III, Judge Richard R. Townsend, Judge Dorothy Vaccaro.
Copies furnished to:
Justice Peggy Quince
Thomas D. Hall, Clerk of Supreme Court
All Committee Members
Executive Director of the J.Q.C.
Office of the State Courts Administrator
Inquiring Judge (Name of inquiring judge deleted from this copy)
1. A judge should disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification. The fact that the judge conveys this information does not automatically require the judge to be disqualified upon a request by either party, but the issue should be resolved on a case-by-case basis. Fla. Code Jud. Conduct, Commentary to Canon 3E(1).
2. Canon 3E states that a judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned.
3. If a judge must disclose a friendship with an attorney, the judge must disclose that friendship when any member of the attorney’s firm appears before the judge. Fla. JEAC Op. 04-35.