Thinking Ethics: Can We Be (facebook) Friends?
| Publication year | 2010 |
| Pages | 16 |
By Hon. Steve Leben, Kansas Court of Appeals, Topeka, lebens@kscourts.org
A couple of months after I had presided over a complex civil jury trial, I had lunch with one of the attorneys who had been involved in the case. He and I had been associates at the same firm many years ago, and we thought it was a good time to catch up after the trial. Over lunch, the conversation turned to Facebook. He used it quite a bit, and he explained to me that he had actually developed quite a relationship with one very good client through Facebook, which turned out to be the only means of communication that particular client really used. He invited me to communicate with him through Facebook too, but I didn't have an account and really didn't want to.
As a trial judge, being affirmed is a good thing, even when the appellate court invokes the "right for the wrong reason" rule to do so. My decision not to enter a Facebook friendship with an attorney may have been that type of decision. Four conflicting judicial ethics advisory opinions have been given in the past two years on whether attorneys and judges may be friends on Facebook or similar social networks. Lest you unwittingly create a problem for yourself or a judge, I think it's worth taking a minute to consider the differing views on this.
In Florida Advisory Opinion 2009-20, the Florida Judicial Ethics Committee concluded that a lawyer should not be a Facebook friend of a judge:
The issue ... is not whether the lawyer actually is in a position to influence the judge, but instead whether ... 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.
The Florida committee rejected follow-up suggestions that a judge could just accept as friends all attorneys who ask and that a judge could place a disclaimer on the judge's Facebook page explaining that Facebook friends are only acquaintances, not traditional friends. Fla. Advisory Op. 2010-6.
Other ethics advisory opinions have suggested that a judge may have attorneys or other court participants as Facebook friends but that such relationships may lead to recusals:
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