DUI Prosecutors and Judges Can’t be Facebook Friends

Those accused of crimes like DUI are acutely aware of what may be perceived to be the unfairness of the judicial system.  Lawyers who represent those accused of drunk driving may also be subject to such perception.  Whether any bias on the part of the judiciary actually exists is beyond the purpose of this article.  Instead, the question is whether or not, when judges become “Facebook friends” with prosecuting attorneys, such friendships create the appearance of impropriety.

As the move the Social Network clearly shows, Facebook was originally designed to allow college kids to socialize online.  It has morphed into something completely different, and now the fastest growing segment is the adult population, including the 40+ group.  Naturally, with more than 1 million lawyers in the United States, there are lots of lawyers on Facebook.

Many lawyers use their Facebook page to promote their practices, and everyone wants to look popular, even if it’s only virtual popularity.  Because of this, many people, including lawyers, indiscriminately add others as their “friends.”

When it comes to the legal profession, this can cause lots of different problems, and first among them is the apparent conflict of interest loosely described above.  At least one state’s Supreme Court has found that such “friendships” between lawyers and prosecutors violates the ethics expected of the judiciary.

In the Judicial Ethics Advisory Committee opinion, the Supreme Court indicates that when a judge identifies lawyers who may appear in front of him or her as “friends” on the judge’s Facebook page and permits those lawyers to identify the judge as a “friend” on their pages, this practice would violate Judical Canons of Ethics 2B.

Canon 2B states:

“A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge.”

With regard to a social networking site, in order to fall within the prohibition of Canon 2B, the three elements must be present.

  1. First, the judge must establish the social networking page.
  2. Second, the site must afford the judge the right to accept or reject contacts or “friends” on the judge’s page, or denominate the judge as a “friend” on another member’s page.
  3. Third, the identity of the “friends” or contacts selected by the judge, and the judge’s having denominated himself or herself as a “friend” on another’s page, must then be communicated to others.

Typically, this third element is fulfilled because each of a judge’s “friends” may see on the judge’s page who the judge’s other “friends” are.  Similarly, all “friends” of another user may see that the judge is also a “friend” of that user.

It is this selection and communication process that violates Canon 2B, because the judge, by so doing, conveys or permits others to convey the impression that they are in a special position to influence the judge.

While judges cannot isolate themselves entirely from the real world and cannot be expected to avoid all friendships outside of their judicial responsibilities, some restrictions upon a judge’s conduct are inherent in the office. Thus, the Commentary to Judical Canon 2A states:

“Irresponsible or improper conduct by judges erodes public confidence in the judiciary. A judge must avoid all impropriety and appearance of impropriety. A judge must expect to be the subject of constant public scrutiny. A judge must therefore accept restrictions on the judge’s conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.”

A judge’s participation in a social networking site must also conform to the limitations imposed by Canon 5A, which provides:

Extrajudicial Activities in General. A judge shall conduct all of the judge’s extra-judicial activities so that they do not:

1. cast reasonable doubt on the judge’s capacity to act impartially as a judge;

2. undermine the judge’s independence, integrity, or impartiality;

3. demean the judicial office;

4. interfere with the proper performance of judicial duties;

5. lead to frequent disqualification of the judge; or

6. appear to a reasonable person to be coercive.

When a Judge lists lawyers who may appear before the judge as “friends” on a judge’s social networking page this 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.  Such identification in a public forum of a DUI lawyer who may appear before the judge does convey this impression and therefore is not permitted.

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Patrick T. Barone

Founding Partner and CEO at Barone Defense Firm
The Founding Partner and CEO of the Barone Defense Firm, Mr. Barone has written two books and 100s of articles on the subject of DUI defense and trial practice. He is an adjunct professor at Thomas M. Cooley Law School, where he teaches a cutting-edge class on the practice of DUI defense. He is a highly sought after speaker for bar association meetings and legal education seminars throughout the country. He is also on the Faculty of the National College for DUI Defense. And, because his colleagues consistently give him top reviews, Mr. Barone has an “AV” (highest) rating from Martindale-Hubbell, and since 2009 has been included in the highly selective US News & World Report’s America’s Best Lawyers while The Barone Defense Firm appears in their companion America’s Best Law Firms. He has been rated “Seriously Outstanding” by SuperLawyers, rated “Outstanding/10.0” by AVVO and has recently been appointed to the advisory board for the Michigan edition of Leading Lawyers Magazine.
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