Legal Commentary

Florida Judicial Ethics Advisory Committee Forbids Facebook ?Friendships? Between Judges and Lawyers

By Ilya Somin

The Florida Judicial Ethics Committee has issued an opinion forbidding judges to be Facebook ?friends? with lawyers who may appear before them:

Judges and lawyers in Florida can no longer be Facebook friends.

In a recent opinion, the state?s Judicial Ethics Advisory Committee decided it was time to set limits on judicial behavior online. When judges ?friend? lawyers who may appear before them, the committee said, it creates the appearance of a conflict of interest, since it ?reasonably conveys to others the impression that these lawyer ?friends? are in a special position to influence the judge.?

In practice, of course, actual friends and Facebook friends can be as different as leather and pleather, and the committee did recognize that online friends were not the same as friends in the traditional sense. A minority of the panel would have allowed Facebook friendship, which it characterized as more like ?a contact or acquaintance? without conveying the notion of ?feelings of affection or personal regard.?

But the committee?s majority concluded that the possibility of the appearance of impropriety required that they recommend against friending, said Judge T. Michael Jones of the First Judicial Circuit Court, a committee member. He emphasized that the committee?s role was advisory, and that the opinion ?does not have the force of a Supreme Court opinion? in Florida.

The opinion itself is available here.

At first glance, it might seem as if the opinion reflects a generational divide. The older members of the Committee may simply not understand how Facebook and other social networking sites work, and therefore don?t realize that a Facebook ?friendship? doesn?t necessarily signal any kind of close relationship. Indeed, many Facebook friends don?t know each other in the real world at all. Only those ignorant of the way these sites function would assume that a Facebook friend is likely to be ?in a special position to influence the judge.?

The problem goes deeper than that, however. As far as I know, both Florida and most other states don?t forbid judges to be real-world friends with lawyers who may appear before them. A judge who shows favoritism to a lawyer who is a personal friend may be sanctioned, as notorious federal district Judge Samuel B. Kent was (Kent was later forced to resign because of unrelated criminal charges). But the mere existence of a friendship between lawyer and judge is not considered to be a violation of judicial ethics in and of itself. So the Florida Committee?s approach actually treats Facebook friendship between lawyers and judges as a more serious breach of judicial etiquette than a genuinely close friendship between the two. I could understand the logic of a rule that forbade all social fraternization between judges and lawyers who might appear before them. Such a rule would be unduly harsh. Yet it would at least be consistent. But I can?t understand the justification for a rule that bans essentially innocuous Facebook ?friendships? but turns a blind eye to real friendships.

UPDATE: I discussed the related issue of Facebook friendships between professors and students here and here. My general policy is that I accept ?friend? requests from students, but do not initiate them, so that students will not feel pressured to reveal personal information to me. I don?t worry that people will think that I am somehow favoring students who are Facebook ?friends,? because most interested observers will understand that Facebook friendship is not actually any kind of genuinely close relationship.

Full post as published by The Volokh Conspiracy on December 15, 2009 (boomark / email).