Sunday, December 13, 2009

You can't 'Facebook friend' Florida judges... what about Illinois?

You may have heard or read last week that a Florida ethics committee ruled that judges cannot "friend" lawyers on Facebook or other social networking sites. The way the story was reported, you might be forgiven for concluding that a bunch of moss-backed old Luddites in Tallahassee are fighting some sort of last-ditch resistance against that crazy Internet thing all those durn-fool kids keep talking about. The New York Times' December 10 take on the story was not quite that harsh; neither was the Wall Street Journal's "Law Blog" December 9 post.

And the actual facts are more nuanced still. That's a link to the actual November 17 opinion of the Judicial Ethics Advisory Commission of the Florida Supreme Court in the preceding sentence.

The press coverage focused on just one aspect of the Florida opinion, namely, whether Florida judges should accept 'friend' requests on Facebook and other social networks from lawyers likely to appear in their courts. Florida said this was a bad idea because "listing lawyers who may appear before the judge as 'friends' on a judge's social networking page reasonably conveys to others the impression that these lawyer 'friends' are in a special position to influence the judge. This is not to say, of course, that simply because a lawyer is listed as a 'friend' on a social networking site or because a lawyer is a friend of the judge, as the term friend is used in its traditional sense, means that this lawyer is, in fact, in a special position to influence the judge. The issue, however, is not whether the lawyer actually is in a position to influence the judge, but instead whether the proposed conduct, 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."

There is, to my knowledge, no similar prohibition in Illinois and I would be very surprised if such a prohibition were to be imposed in the near future. First, as even the Florida committee acknowledges in the passage quoted above, a person who is a "friend" on a person's social networking site is not necessarily an intimate -- or even a nodding acquaintance -- of that person in "real life." Members of the general public -- including those who do not use social networking sites might be confused by the designation... but, for the most part, only people who use social networking sites see social networking sites and therefore no confusion is likely to result.* (On the other hand, I wouldn't want to try and defend the lawyer who buys an ad on TV or in print touting his 'friendships' with various jurists as documented by Facebook.)

Second, the Illinois Supreme Court has its own Twitter feed. As a practical matter, therefore, it appears that the Illinois courts have taken a different approach to social networks than their Florida brothers and sisters.

And even the Florida JEAC did not forbid Facebook to Florida jurists altogether. Judges may establish sites and 'friend' each other -- and, presumably, their families and non-lawyer neighbors and friends as well.

Also, said the Florida Committee, judicial campaign committees can set up Facebook pages where lawyers, even lawyers who appear before that judge, can list themselves as "fans." The key distinction, in the opinion of the Florida JEAC, is that, on a fan page the lawyer is not accepted or rejected by the judge. "Because the judge or the campaign cannot accept or reject the listing of the fan on the campaign's social networking site, the listing of a lawyer's name does not convey the impression that the lawyer is in a special position to influence the judge."

* Indeed, a minority of the Florida Committee reached this conclusion also. Quoting from the report, "The minority concludes that social networking sites have become so ubiquitous that the term 'friend' on these pages does not convey the same meaning that it did in the pre-internet age; that today, the term 'friend' on social networking sites merely conveys the message that a person so identified is a contact or acquaintance; and that such an identification does not convey that a person is a 'friend' in the traditional sense, i.e., a person attached to another person by feelings of affection or personal regard."


Anonymous said...

FYI, SC just came to a different conclusion than FL.

Dave! said...

I think the FL decision, nuanced though it may be, misses the mark. Those using social networking sites understand that "Friend" is used loosely. And I fail to see how anyone would think an attorney who is a Facebook friend would have more influence over a judge than an attorney who was a "fan" and also happened to donate the the judges election campaign!