Unwise Judge(ment) on Facebook
Be careful in the wilds of Facebook.
Social networking sites are no longer all about the “social.” We’re not just Facebook friends and Twitter followers with our friends; we regularly establish contact on the sites with our colleagues, bosses, professional contacts, etc.
Just as when you invite officemates to a party you’re throwing, work tends to come up in conversation. That can be unwise at a party when alcohol is involved — you might say something stupid in an inebriated moment. It may be more unwise on websites, where the conversations are archived and viewable by your whole network.
Some work conversations are innocuous. Last month, I wrote a post on Above The Law that referenced Sonia Sotomayor. It elicited some offensive comments. Offensive comments on ATL aren’t terribly surprisingly; I’ve gotten used to seeing anonymous commenters release their ids online, but these ones seemed to set the tone for a full day of terrible comments. I tweeted: “ATL comments have jumped the shark.” (Don’t know the Happy Days meme? Check Wikipedia.) My co-editor and a former ATL feature writer both responded:
ElieNYC: @kashhill If I could find and beat the crap out of just one racist commenter, it would make it all worth it.
justinbernold: Hmm, are @ElieNYC & @kashhill tweeting to one another while sitting in the same room? Somewhere in America, you’ve just made a luddite cry.
Afterwards, I wondered, “Hmmm… should I be tweeting about what I think about our commenters?” We don’t have a tweeting policy at ATL, unlike at the Wall Street Journal. I decided it was pretty harmless, and was meant to be funny after all.
What’s not so harmless and funny is for a judge to discuss a case with defense counsel via Facebook wall. Yeah, that’ll get you in trouble with the higher-ups.
North Carolina Judge B. Carlton Terry Jr. was overseeing a child custody case, according to the Dispatch and became friends with the defense counsel, Charles Schieck, on Facebook. It’s unclear who friended who.
That’s technically okay, but their Facebook banter went too far, violating rules of the court, resulting in a reprimand for the judge and an order for a new trial:
The opinion says Terry and Shieck [sic] first discussed Facebook in chambers in the presence of the opposing lawyer in the case, Jessie Conley, who said she didn’t know what Facebook was and didn’t have time for it. After the discussion, Terry and Shieck [sic] friended each other.
via Judge Reprimanded for Friending Lawyer and Googling Litigant | ABA Journal – Law News Now.
On or about the evening of September 10, 2008, Judge Terry checked Schieck’s “Facebook” account and saw where Schieck had posted “how do I prove a negative”. Judge Terry posted on his “Facebook” account, he had “two good parents to choose from” and “Terry feels that he will be back in court” referring to the case not being settled. Schieck then posted on his “Facebook” account, “I have a wise Judge”….
On or about September 11, 2008, Judge Terry wrote on his “Facebook” account, “he was
in his last day of trial”. Schieck then wrote “I hope I’m in my last day of trial.” Judge
Terry responded stating “you are in your last day of trial”.
The problem with the judge and the lawyer discussing the trial on Facebook is that a judge is not supposed to engage in ex parte communications involving a case he’s overseeing, or in non-Latin terms: communicating with one side’s attorney to the exclusion of the other side, or talking to a third party about the case.
Even if the opposing counsel, Jessie Conley, had been on Facebook and taken part in the wall discussion, the Judicial Standards Commission probably wouldn’t be cool with their moving the case discussion from the judge’s chambers to a public Facebook wall.
While it’s apparently okay for a judge and a lawyer to friend each other, Terry and Schieck have called it quits on their Facebook friendship. Both appear to have canceled their accounts.
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[...] Everyone’s going to know these clerks are at the courts on a law firm’s dime. Law students usually spend a summer at the law firm they will eventually work at before their final year of law school. With a quick visit to a clerk’s Facebook page, it’s likely to be obvious based on photos and work information where he or she is heading after their clerkship, and thus who is paying their salary. (As I have written before, there are judges on Facebook.) [...]