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<img style="max-width: 100%;height: auto;max-width: 100%;height: auto" loading="lazy" class="alignright size-medium wp-image-4619" src="https://www.thelawforlawyerstoday.com/wp-content/uploads/sites/754/2019/09/Judge-and-robe-300x200.jpg" alt="" width="300" height="200">Can we be Facebook friends?&nbsp; That&rsquo;s one question left open by the ABA earlier this month in <a href="https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/aba_formal_opinion_488.pdf">Formal Opinion 488</a>, on the subject of judges&rsquo; personal relationships with lawyers as grounds for disqualification.&nbsp; While spotlighting judicial ethics duties in maintaining impartiality, the opinion fails to provide some needed guidance on social media relationships.
Model Code of Judicial Conduct rules
Under <a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_code_of_judicial_conduct/model_code_of_judicial_conduct_canon_2/rule2_11disqualification/">Rule 2.11(A)(2)</a> of the Model Code of Judicial Conduct, judges must disqualify themselves when their impartiality may reasonably be questioned, including (not limited to) where the judge&rsquo;s spouse or domestic partner (and certain of their relatives) is a lawyer&nbsp;or party in the proceeding.
In Opinion 488, the ABA Ethics Committee advises on situations that fall outside the bounds of Rule 2.11(A)(2); that is, where&nbsp;judges may have &ldquo;social or close personal relationships with the lawyers or parties&rdquo; but not&nbsp;as a spouse, domestic partner or other family member.
The Committee identifies&nbsp;three categories of such relationships between judges and lawyers:&nbsp; acquaintanceships; friendships; and close personal relationships.
In a common-sense application of Rule 2.11(A)(2), the Committee concluded that judges are not required to disqualify themselves or make disclosure&nbsp;when&nbsp;they are merely acquainted with a lawyer &mdash; for instance through being members of the same worship-place, gym or civic organization, or even having been co-counsel on a case before the judge took the bench.&nbsp; Standing alone,&nbsp;acquaintanceship is not a reasonable basis to question a judge&rsquo;s impartiality, the&nbsp;Committee said.
&ldquo;Friendship&rdquo; implies a greater degree of affinity, according to the opinion.&nbsp; Friends may be casual&nbsp;(periodically meeting for a meal, staying in touch through calls or correspondence) or closer (routinely spending time together, vacationing together, sharing a mentor-protegee relationship developed while colleagues).&nbsp; Not all friendships require disqualification, but there may be situations &ldquo;in which the judge&rsquo;s friendship with a lawyer or party is so tight&rdquo; that there might be reasonable questions about the judge&rsquo;s impartiality.&nbsp; It&rsquo;s a matter of degree, the Committee advised.
Last, a judge may have a personal relationship that goes beyond friendship but that still does not implicate Rule 2.11.&nbsp; The judge may be involved romantically with a lawyer,&nbsp;or desire a romance; the judge and a lawyer may be amicable ex-spouses; or the judge may be a god-parent to a lawyer&rsquo;s child or vice versa.&nbsp;&nbsp;Existing or desired romantic relationships require disqualification, said the&nbsp;Committee.&nbsp; &ldquo;Other intimate or close personal relationships with a lawyer or party&rdquo; at least require disclosure &ldquo;even if the judge believes that he or she can be impartial,&rdquo; and could require disqualification &mdash; it depends on the circumstances, the Committee said.
What&rsquo;s left out?
Over at <a href="http://bernabepr.blogspot.com/2019/09/aba-committee-on-ethics-and.html">Professional Responsibility Blog</a>, Prof. Alberto Bernabe points out that while the opinion is sensible, it&nbsp;doesn&rsquo;t deal with an issue&nbsp;of concern to many lawyers &mdash; namely social media &ldquo;friendships&rdquo; with judges.&nbsp; (Elected judges in particular sometimes seek out such&nbsp;virtual friendships.)&nbsp; The issue&nbsp;is&nbsp;also the subject of several state ethics opinions, which have been somewhat&nbsp;divergent in their approaches.
Opinions in <a href="https://www.thelawforlawyerstoday.com/wp-content/uploads/sites/754/2019/12/Supreme-Court-of-Ohio-Op-10-007-December-2010.pdf">Ohio</a> and <a href="https://www.nycourts.gov/ip/judicialethics/opinions/13-39.htm">New York</a>, for instance, suggest that a social media friendship with a lawyer is not a per se basis for judicial disqualification.&nbsp; Opinions in some other jurisdictions are more restrictive, and bar judges from being Facebook friends with lawyers who are currently appearing before them&nbsp;(<a href="http://www.caljudges.org/docs/Ethics%20Opinions/Op%2066%20Final.pdf">California</a>)&nbsp;or even may appear before them&nbsp;(<a href="http://www.mass.gov/courts/case-legal-res/ethics-opinions/judicial-ethics-opinions/cje-opin-2011-6.html">Massachusetts</a>).
Late last year, the Florida Supreme Court <a href="https://www.floridasupremecourt.org/content/download/412519/3708863/file/sc17-1848.pdf">ruled&nbsp;in&nbsp;a&nbsp;divided&nbsp;opinion</a> that there is no basis to single out&nbsp;social media &ldquo;friendships&rdquo; between judges and lawyers for a per se rule of judicial disqualification.&nbsp; That makes sense to Prof. Bernabe and other commentators (see <a href="https://bernabepr.blogspot.com/2018/12/florida-supreme-court-that-there-is-no.html">here</a>): &nbsp;given that&nbsp;real-life&nbsp;friendships aren&rsquo;t automatically disqualifying, why should virtual ones be?
But earlier this year,&nbsp;a Wisconsin court of appeals rejected a per se rule&nbsp;while still <a href="https://www.wicourts.gov/ca/opinion/DisplayDocument.pdf?content=pdf&amp;seqNo=235439">holding&nbsp;</a>in a child custody case that&nbsp;accepting a Facebook &ldquo;friend&rdquo; request from a party with a motion pending creates an appearance of impropriety and warrants&nbsp;judicial disqualification.
The ABA Ethics Committee could have been more helpful in clarifying the social media rules of the road on this issue for lawyers and judges.&nbsp; In the meantime, lawyers should be mindful of their state&rsquo;s version of <a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_8_4_misconduct/">Model Rule 8.4(f)</a>, which bars knowingly assisting a judge in conduct that violates the rules of judicial conduct, as well as&nbsp;any applicable state ethics opinions or cases&nbsp;that make it unfriendly to be a (social media) friend.

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Ethics

Legal Ethics, Professional Responsibility and the Business of Law

ABA opinion on judges and recusal based on personal relationships leaves some open questions