We Can’t Be “Friends,” But Can We at Least “Connect”? Or Will Florida “Connect” With the New ABA Opinion?

As we recently posted, three years ago, the Florida Judicial Ethics Advisory Committee (JEAC) issued an ethics opinion that announced that a judge may not be “friends” on social media with a lawyer who may appear before the judge in court. Last year, a judge requested the JEAC to opine on whether the same restriction should apply to the professional networking site LinkedIn. This would make it impermissible for judges to accept  lawyers  as “connections” on LinkedIn if those lawyers might appear before those judges.  The inquiring judge suggested that the JEAC should recognize a distinction between Facebook and LinkedIn. The inquiring judge articulated that Facebook is primarily designated for family and personal relationships, whereas LinkedIn fosters professional networking.

The JEAC responded by stating that although Facebook is the social networking site referenced in its 2009 and 2010 opinions, “friending” refers to any social media site that requires members to approve their “friend” or contact listings and is displayed to the public. The JEAC conceded that “friend” for the purpose of social media does not necessarily convey the “traditional meaning of close affection.” However, the  JEAC  2012 opinion concludes that a judge should not connect with a lawyer on LinkedIn if that lawyer may appear before the judge. The opinion is grounded in Canon 2B, which prohibits a judge from conveying or permitting others to convey the impression that an individual is in a special position to influence the judge. For the complete advisory opinion, click here.

Yesterday the ABA issued Formal Opinion 462, which concluded that a connection was not necessarily impermissible. (See our earlier post here.) The ABA opinion suggests that a judge will “seldom have an affirmative obligation to disclose”  a connection and should not have to search all of her social media connections if the judge is unaware of a connection that may give rise to an “actual or perceived threat” of a problematic relationship with an individual.  In other words, a judge should evaluate whether a social media connection compels recusal in the same manner that she employs for relationships with individuals in real time.

Will the Florida JEAC or the Florida courts “connect” with the ABA analysis?  Time and technology will tell…