The Court of Appeals of Wisconsin recently held that a judge’s acceptance of a Facebook “friend” request from a party with a pending motion creates the appearance of impropriety. Accordingly, such a social medial relationship warrants replacement of the judge. The Court did not, however, go so far as to draw a bright-line rule prohibiting the use of social media by judges altogether.
Private Facebook Friend Request
In re Paternity of BJM, the parties were involved in a child-custody dispute where one party accused the other of domestic abuse. The parties participated in an evidentiary hearing and subsequently briefing with the lower level court. Just three days after the parties submitted their briefs to the court, the presiding judge accepted a Facebook “friend” request of the accusing party. The new social media connection was never disclosed by the judge to the accused nor his legal counsel.
The accusing party then “liked” almost 20 of the judge’s posts and commented on several more. The judge did not “like” any of the accusing party’s posts, respond to any of the accusing party’s comments, and none of the social media activity was directly related to the pending child-custody dispute. Nonetheless, the appellate court held that the timing of the newfounded online relationship gave rise to the appearance of bias. The accusing party and judge’s lack of disclosure, moreover, further added to the appearance of bias.The appellate court warned that the judiciary should understand that online interactions – just like those in the real-world – must be treated carefully.
Context and Timing Matters on Social Media
While there is no per se rule prohibiting judges from having Facebook friends with parties or litigants, the ruling out of the Wisconsin Appeals court illustrates how context and timing is important. Indeed, it is likely that the pending nature of the ruling before the judge coupled with the ex parte nature of the connection and lack of a prior relationship between the judge and the accusing party drove the higher court’s ultimate decision.
For this reason, practicing attorneys should keep an eye on overzealous clients and make sure they prevent them from engaging in inappropriate contacts that could ultimately have an adverse effect on their legal matter. Spend a significant amount of time discussing social media in general with clients and explain how online activity is scrutinized in litigation. If you should find yourself in the situation of the attorney for the accusing party, it is critical to disclose the communication.
Of note, the American Bar Association (ABA) has issued a statement on this particular matter noting that not all social media connections and contacts are inappropriate.
