Friending - Ethical Considerations

Ethical Considerations

The act of "friending" someone on a social networking service has particular ethical implications for judges in the United States. Judicial codes of conducts in the various states generally incorporate some form of provision that judges should avoid even the appearance of impropriety. Whether this regulates and even prohibits judges "friending" attorneys that appear before them, and law enforcement personnel, has been the subject of some analysis by the judicial ethics panels of the various states. They haven't all agreed on the guidance that they have given to judges:

• The New York state Judicial Ethics committee in 2009 simply advised judges to employ caution, noting that the issue of "friending" someone on a social networking service is a publicly observable act that is little different to other public behaviour concerns that judges already face.
• The Florida Judicial Ethics Advisory committee in 2009 noted that, judges being normal human beings, it was unavoidable for judges to form friendships outwith the responsibilities of their job. It prohibited judges from friending any attorneys that appeared before them, whilst allowing friending of those who do not, on the grounds that it may give the appearance to the general public (even if the substance is otherwise) that those attorneys who are friended hold special sway with the judge.

A minority opinion of the committee asserted that there is a substantive difference between "friending" on a social networking service and actual friendship, and that the general public, being aware of the norms of social networking services, was capable of drawing this distinction and would not reasonably conclude either a special degree of influence or a violation of the code of judicial conduct. This minority opinion was outnumbered twice in 2009, both in the Judicial Ethics Advisory and in the Florida Supreme Court Judicial Ethics Advisory committee.

• The South Carolina judicial conduct committee in 2009 permitted judges to friend attorneys and law enforcement personnel, with the proviso that no judicial business should be conducted upon nor discussed via the social networking service. "… a judge should not become isolated from the community in which the judge lives.", the committee stated.
• The Kentucky Judicial Ethics committee in 2010 took the same position as the minority opinion in Florida. It urged judges to exercise caution, but recognized that the act of friending "does not, in and of itself, indicate the degree or intensity of a judge's relationship with the person who is the 'friend'."
• The California Judges Association Judicial Ethics Committee and the Ohio Supreme Court's Board of Commissioners on Grievances and Discipline, both in 2010, reviewed the opitions of ethics committees that had gone before them, and concurred with what appears to be the majority view, that it is permissible for judges to friend attorneys that appear before them, although with the exercise of caution, and as long as the rules of conduct are observed within the social networking service just as they are observed outwith it.