Andrew Sternlight writes: Since last December, two state ethics committees have issued advisory opinions about whether judges should follow certain codes of conduct when using Facebook, the popular social networking Web site. While committees in Florida and South Carolina crafted divergent recommendations, each expressed concerns about the appearance of judicial impartiality on the one hand, and, on the other, isolation from the real world community concerns that will need to be weighed and addressed here in California.
Judges are increasingly criticized for "friending" lawyers and for posting messages about ongoing litigation on Facebook profiles. The North Carolina Judicial Standards Commission publicly reprimanded a judge last year for adding an attorney arguing a case before him as his Facebook friend and then exchanging correspondence on the attorney's Facebook wall about the issues presented in the case. A few months later, a Staten Island Criminal Court judge was transferred to a position in Manhattan, allegedly because he updated his public Facebook status while sitting on the bench and posted privileged information, including at least one photograph of his courtroom during trial, onto his profile page.
It might seem that the act of adding an attorney as a friend on Facebook signifies nothing. Ask any twenty-something whether he or she possesses a "close relationship" with each of his or her hundreds or thousands of Facebook friends, and the honest reply would be in the negative. So-called Facebook friending occurs under a range of circumstances with widely varying significances. New friendships imply anything in between "we haven't met yet, but let's be ‘friends' anyway" to "we have been close pals since childhood, so let's digitally memorialize our companionship." But some evidence suggests that older consumers may use Facebook's friending feature more cautiously, and regardless there always exists the possibility that any given Facebook friendship does actually denote a special relationship of trust and confidence.
Florida's Judicial Ethics Advisory Committee opined that no friending should be permitted between judges and attorneys at all, because it "reasonably conveys to others the impression that these lawyer 'friends' are in a special position to influence the judge," whether or not they in fact are in such a position. Some academics agree with this approach, pointing out that if a judge were to friend certain lawyers but not others, the act might transmit unintentional messages not only to attorneys competing for the judge's online affection, but also to plaintiffs making hiring decisions about attorneys, some of which are "friends" of the judge and others of which are not. After all, once an attorney forms a "friendship" with a judge on Facebook, their union is broadcast to all of the judge's current friends via Facebook's news feed feature that tracks a continuously updated digest of the judge's activity.
But the South Carolina Advisory Committee on Standards of Judicial Conduct did not adopt Florida's narrow approach. Instead, it counseled that it is acceptable for judges to Facebook-friend attorneys, law enforcement officers, and other judicial staff, so long as the parties refrain from discussing judicial business on Facebook. The Committee took note of concerns that the appearance of partiality could vitiate public confidence in the court, but it departed from Florida's restrictive rule out of an interest in preserving the judge's interaction with his or her community—enabling both the judge to make more informed adjudications and, in turn, the community to better understand and identify with the judge. The Canadian Judicial Council defended South Carolina's more lenient standard, even transcending it in allowing judges to use Facebook in any manner they see fit, as long as the use is in accordance with the usual rules of judicial decorum.
Notwithstanding the Florida and South Carolina committees' judgments, I wonder whether there is a third policy interest in providing a lenient judge-attorney Facebook friendship rule, besides the two identified, competing interests in providing the appearance of judicial impartiality and in encouraging judicial interaction with his or her community: that is, there is a genuine need to determine actual impartiality. With respect to Facebook relationships, the interest in the appearance of impartiality (resulting in Florida's restrictive proscription against judge-attorney Facebook friendships) conflicts with an interest in establishing whether the judge is truly impartial, because prohibiting Facebook friendships between judge and attorney precludes the Facebook-friendship signal that could warn the rest of the world that a conflict of interest might indeed exist. While a close relationship between a judge and an attorney may not be memorialized in a Facebook friendship, it is increasingly uncommon for two Facebook users who share an important relationship to neglect friending each other.
Moreover, the appearance of judicial impartiality on Facebook is not resolved by forbidding "friendships" between judges and attorneys. For example, in the absence of Facebook friendship, a judge is still able to post photographs of private social gatherings where an attorney is present and to make such posted photographs publicly available. In addition, an ever increasing number of add-in applications are available to publicly disclose exchanges between two Facebook users that are not necessarily friends. Such applications, including certain versions of the endemic FarmVille program for Facebook, begin to blur the once bright line between assent-based, mutual Facebook friendships and one-sided communications that are not sanctioned by the other user. This software could even gravely intrude upon public confidence in a judge if, for example, an attorney were to convey a free Facebook gift, token, or other item of fictional but apparent value to the judge in the course of participating in a Facebook game.
This issue is not likely to disappear anytime soon, and may become more complex as Facebook attracts new users and evolves original features. According to a recent survey conducted by the Pew Internet Project, the number of adult users of social networking websites has quadrupled during the past four years. Furthermore, Facebook rolled out a new privacy policy last November that a number of organizations have aggressively criticized. Foremost among these critics, the Electronic Frontier Foundation argues that, despite some simpler controls and useful per-post privacy options, Facebook's new "recommended" default settings cause status messages and wall posts to be accessible to any user on the Internet. Further, the EFF points out that Facebook now irrevocably makes a user's name, profile picture, current city, gender, networks, and fan pages publicly available, whereas, previously, users were able to choose whether to restrict this information. In light of these developments, California would be prudent to adopt a standard for Facebook friendships for judges soon.
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