March 10, 2015
By Richard Raysman and Peter Brown, New York Law Journal

According to a survey released in February 2015, 62 percent of law firms in the United States maintain a social media presence. A similar survey estimates that nearly 75 percent of law firms in this country are visible on one or more social media platforms for the purposes of marketing and content creation. The legal profession is being irrevocably roped in to the world of Facebook and Twitter communication. As reported by The New York Times in late-February, as online access to legal documents increases, non-parties to cases have begun in droves to read particularly “lurid” lawsuits, much as one might read a tabloid. Social media has a similar effect and the consequences therefrom are yet to be understood in any meaningful way.

Invariably, as usage escalates, thoughtless use of social media has engendered nightmares for some lawyers. One prosecutor in Florida received heavy criticism after posting a “Gilligan’s Island”-themed commentary on Facebook that included a reference to the defendant as a “gang banger.” An Indiana Deputy Assistant Attorney General was fired for tweeting, purportedly in jest, that Wisconsin police should use “live ammunition” to remove protestors from the Wisconsin Capitol building.

Other examples abound. As some jurisdictions have begun to elevate the standard of conduct for lawyers to include social media communications, proceedings have thus arisen in which both lawyers and judges have been disciplined for remarks made via these platforms. This column will discuss a number of these cases, including: discipline for an attorney that sent an ex parte Facebook message during a rancorous adoption proceeding to the unrepresented adversarial party; if a judge can be excluded from judging after pejorative comments on Facebook to the father of her children; and whether a court can use its powers to prevent a party from posting comments on social media about a pending case.

Like Many Laypeople, Attorneys Sometimes Use Social Media Irresponsibly. In re Gamble, 338 P.3d 576 (Kan. 2014) (per curiam), involved the Supreme Court of Kansas deciding an attorney disciplinary proceeding based on an ex parte communication via Facebook from an attorney to an unrepresented party. The respondent attorney (Gamble) represented the biological father involved in a rancorous adoption proceeding. Gamble sent the mother a private message through Facebook, in which he encouraged her to sign a revocation of consent to adopt.

Gamble’s message was then referred for a hearing in front of the Kansas Board of Discipline of Attorneys (the Board). The Board found Gamble in violation of two separate rules of professional conduct, including one that prohibits attorneys from engaging in conduct “that is prejudicial to the administration of justice.” As a repeat offender (albeit for infractions unrelated to conduct on social media), the Board recommended a suspension of Gamble for 60 days. On appeal, the Supreme Court of Kansas held that the sentence resulting from Gamble’s ex parte social media communication had been established by clear and convincing evidence as a violation of the Kansas rules of professional conduct. The court, in agreeing with a separate disciplinary recommendation from an individual state bar administrator, extended the Board’s recommended suspension three-fold to six months.

Social media communications by attorneys can also potentially complicate proceedings an attorney is litigating, occasionally in a negative way. For instance, in State v. Usee, 800 N.W.2d 192 (Minn. Ct. App. 2011), on appeal of a conviction for attempted first-degree murder, the defendant moved for a new trial on grounds that the verdict had not been reached by an impartial jury, thereby denying the defendant a fair trial. The grounds for the motion were highly offensive statements by the prosecutor on her public Facebook page. Specifically, the prosecutor posted remarks around the beginning of jury deliberations that she was “keep[ing] the streets of Minneapolis safe from the Somalias [sic]” (the defendant was evidently perceived by the prosecutor to be of Somali descent; the record does not indicate either way).

Four days after the issuance of a guilty verdict, the defendant in Usee moved for a specific type of hearing designed to permit a trial court to address questions of jury misconduct. See Schwartz v. Minneapolis Suburban Bus Co., 104 N.W.2d 301 (Minn. 1960). The trial court denied the defendant’s motion for a Schwartz hearing and the appellate court held that its decision did not constitute an abuse of discretion. Since there was no verifiable evidence that any juror viewed or had otherwise been exposed to the prosecutor’s Facebook comments, the defendant could not establish a prima facie case for a conclusion that sufficient evidence existed, standing alone and unchallenged, which warranted a conclusion of juror misconduct.

The Way Judges Use Social Media Can Be Considered Sanctionable Professional Misconduct or Warrant Trial Disqualification. In 2013, the American Bar Association (ABA) Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 462. Among other conclusions, the Opinion stated that, although judges are held to a higher standard than the “average member of the public,” judges can, and arguably should, use social media to militate against the notion that they are out of touch with broader society. In addition, when utilizing social media, judges will rarely have a mandate or ethical duty to publicize these private conversations, due to their “open and casual nature.” However, as to be expected given the sheer number of judges throughout the country, coupled with the technological capabilities inherent in the social networks, a number of magistrates have heretofore run afoul of the ideals embodied by the ABA Opinion, the applicable rules of professional conduct, and arguably, of common decency.

In January 2015, the Indiana Supreme Court permanently forbade a sitting municipal court judge from any future judging, in part because of an indecorous statement made on social media. See In re Bennington, — N.E.3d —-, 2015 WL 543332 (Ind. 2015) (per curiam). City Judge Dianna L. Bennington faced a judicial disciplinary action proceeding after committing a surfeit of alleged violations, from a failure to cooperate during the investigation antecedent to the disciplinary hearing, to a willful refusal to enforce state criminal sentencing protocol. Although Bennington’s banishment was largely premised on her abuse of her contempt powers, she was separately sanctioned for “injudicious behavior outside of the courtroom.” Specifically, a statement by Bennington on the Facebook page of the biological father of her children was characterized by the court as evidencing “injudicious behavior in [her] personal life.” Bennington was in a dispute with the father over child support payments. After seeing a photo of the father and his girlfriend on Facebook, Bennington observed that it “[m]ust be nice to take such an extensive trip but not pay your bills. Just sayin’ [sic].” The comment was visible to others who had access to the boyfriend’s page for at least an hour before Bennington deleted it. The remark was deemed by the court to contravene a judge’s responsibility under the applicable professional conduct to “act at all times in a manner that promotes public confidence in the … integrity … of the judiciary.”

Judicial conduct on social networking sites with respect to parties involved in proceedings before the judge has likewise created circumstances in which the judge’s prudence and impartiality is questioned. Although higher courts reviewing such conduct have diverged on the implications therefrom, a state appellate court in Florida concluded that an ex parte communication via social media by a trial judge to one of the parties in a pending matter warranted disqualification. See Chace v. Loisel, — So. 3d —, 2014 WL 258620 (Fla. Dist. Ct. App. 2014). In Chace, the trial judge, prior to final judgment, sent a Facebook “friend” request to one of the parties (petitioner). The petitioner did not respond to this entreaty, largely for fear of offending the judge. After what the petitioner perceived to be an “disproportionately excessive” ruling against her, she filed a motion to disqualify on grounds that her failure to accept the “friend” request precipitated the adverse ruling.

On appeal, the reviewing court agreed that the trial judge should have been disqualified because of the “friend” request. Such a request put the petitioner in between an impermissible “rock and a hard place” insofar as a response would be a forbidden ex parte communication, while abstention would risk offending the judge. Therefore, a reasonably prudent person could fear that she could not get a fair and impartial trial before this judge. Chace is an outlier to some degree, as a number of other courts confronting the same issues have determined that connections on social networks between judges and parties to instant litigation did not warrant recusal or disqualification ex post. See, e.g., State v. Madden, 2014 WL 931031 (Tenn. Crim. App. March 11, 2014) (judge’s Facebook friendship with state’s witness insufficient to require recusal); State v. Forguson, 2014 WL 631246 (Tenn. Crim. App. Feb. 18, 2014) (judge’s Facebook friendship with a confidential informant who helped convict the defendant cannot alone be sufficient bias to disqualify the judge); Youkers v. State, 400 S.W.3d 200 (Tex. App. 2013) (judge receiving message via Facebook and being “friends” with victim’s father on the same platform did not create bias so as to warrant new trial for defendant; judge immediately reported the contact to all parties and informed messenger that contact must cease).

Even the opinion in Chace called into doubt another Florida case in which a judge was disqualified because of a Facebook “friendship” with the prosecutor. See Domville v. State, 103 So.3d 184 (Fla. Dist. Ct. App. 2014). Chace is likely limited to situations where social media connections are attempted during the pendency of the proceedings. Only in this scenario is the recipient put in the unenviable position of either violating ex parte communication rules or risking the judge taking offense to a declination of the “friendship.” Mandating recusal or disqualification in all instances of social media connections would present a number of problems. For one, in a close-knit legal community, such a requirement would be impractical. Moreover, although there are profound differences between interactions via social networks and those in person, the signification of “friendship” on Facebook is merely a more public version of any friendship a judge may have elsewhere. Finally, in an interesting observation proffered by the court in Chace, a Facebook “friendship” is arguably a term of art in that it refers to relationships that in actuality sometimes constitute acquaintances or virtual strangers.

What Happens When a Judge Prevents Lawyers Litigating in His Court From Using Social Media? Ex parte Wright, — So. 3d —, 2014 WL 5311314 (Ala. 2014) appears to be a question of first impression: Is a protective order constitutional which prohibits lawyers from making any “extrajudicial” references on social media to a case they are litigating? The plaintiffs in the case had signed agreements with a home extermination company (A-1 Exterminating) in which A-1 warranted that it would protect the plaintiffs’ residences from termites. The plaintiffs alleged that, in addition to other warranties, A-1 proffered a series of other representations that en toto amounted to an assurance that their homes were termite free. After the plaintiffs learned that these representations were false, they sued A-1 and its principals for, inter alia, fraud and breach of warranty and contract.

A-1 then filed for a protective order with the trial judge that would forbid plaintiffs’ and their counsel from referencing the case on Facebook and other social media platforms. The order was granted. The plaintiffs then filed a writ of mandamus to the Supreme Court of Alabama seeking rescission or vacatur of the order.

Specifically, the plaintiffs averred that the order constituted an impermissible prior restraint on speech in violation of the First Amendment. At the beginning, the court noted that these cases involve an attempt to maintain a delicate balance between First Amendment interests and countervailing interests of a defendant’s right to a fair trial. Ultimately, the court concluded that the order was unconstitutionally overbroad, primarily because it prohibited plaintiffs’ counsel from making any extrajudicial references to the case, and concomitantly required the counsel to remove all references to the case from all social media platforms. In constitutional rights nomenclature, this meant that the order was illegal insofar as it was not narrowly tailored to use the least restrictive means necessary to ensure that A-1 received a fair trial. See Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984) (explaining this standard).

However, the court in Wright did acknowledge a few caveats to this principle holding. A-1 would still have recourse in the instance that there was a potential taint in the jury venire, and it retained the right to proscribe any statements made by plaintiff’s counsel, whether on social media or otherwise, that were false or deceptive.

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