Update on the Ethical Implications of Ex-Judge Posner’s New Book

After causing an uproar from his former colleagues with his new book, Reforming the Federal Judiciary: My Former Court Needs to Overhaul Its Staff Attorney Program and Begin Televising Its Oral Arguments, recently-retired Judge Posner has moved forward with his crusade with the announcement that he will be representing pro se litigants.

His announcement comes in the wake of an advisory opinion issued by the Judicial Conference Committee on Codes of Conduct that indicated that the release of the aforementioned materials would “violate the intent, letter, and spirit of the Code of Conduct for United States Judges.” Canon 4D(5) of the Code of Conduct for Judicial Employees states that a “judge should not disclose or use nonpublic information acquired in a judicial capacity for any purpose unrelated to the judge’s official duties.” The committee was adamant that Canon 4D(5), among others, would be violated if the materials were published.

Despite the looming ethical problem, Posner moved forward in representing pro se litigants. In an affidavit to the Fourth Circuit, Posner stated that he has decided to “dedicate [his] post-judicial career to helping pro se litigants.” In the affidavit, Posner requested to represent William C. Bond, a pro se litigant who sued government officials in federal court. Posner has also indicated that he will dedicate his salary, which will continue into his retirement, to fund a pro bono law firm.

The article discussing Posner’s decision to help pro se litigants can be found here, and the article discussing Posner’s pro bono law firm can be found here.

The Ethical Implications of Judge Posner’s New Controversial Book

A book published by recently-retired Judge Posner that includes copies of bench memoranda, draft opinions, and internal emails has caused some of his former colleagues to cry foul, raising ethical questions along the way.

The pointedly-titled book, Reforming the Federal Judiciary: My Former Court Needs to Overhaul Its Staff Attorney Program and Begin Televising Its Oral Arguments, details Posner’s views on improving the judicial process. Posner gives special attention to the issue that prompted his retirement – how the court treats pro se litigants. According to Judge Posner, pro se litigants deserve a better shake. To help ensure this, Judge Posner requested to review the 7th Circuit U.S. Court of Appeal’s staff attorney memorandums evaluating pro se litigant cases before these documents were circulated to other 7th Circuit judges. After this request was denied, Judge Posner abruptly resigned.

Chief Judge Diane Wood, the subject of much criticism in the book, wrote in an email to Law360 “[t]he rest of the judges on the court do not share [Posner’s] views. To the contrary, they (and I) hold our Staff Attorney’s office in the highest regard and enjoy working with these talented and committed young lawyers. As for the pro se litigants, who represent more than 60 percent of our docket, both the staff attorneys and the judges work very hard to understand exactly what the person is attempting to say and to see what we can and should do about the case, consistently (of course) with the law.”

After receiving an advanced copy of the book, Chief Judge Wood contacted a Judicial Conference’s conduct committee about the ethics of releasing internal communications. According to an email Judge Wood sent to Judge Posner, the Committee determined that publishing these materials would be an ethics violation. Judge Posner responded by publishing this email in his book as well.

While some believe that Posner’s book is an important dialogue on the treatment of pro se litigants, others are calling it a “baffling, disjointed blow-by-blow” of Posner’s disagreements with Judge Wood.

Read the full article discussing Judge Posner’s book and decide for yourself here.

Facebook “Friends” Aren’t Necessarily Real Friends

Florida’s Third District Court of Appeal has decided that a Facebook friendship doesn’t necessarily signify a close relationship warranting automatic disqualification of a judge. The decision allows Miami-Dade Judge Beatrice Butchko to remain on a case in which she is a Facebook “friend” with a lawyer representing a potential witness and potential party in the pending litigation.

In the decision, the court notes its disagreement with another Florida appeals court. In a 2012 decision, the Fifth District Court of Appeal held that a judge had to disqualify himself because he was Facebook friends with the prosecutor.

In its decision, the Third District Court of Appeal emphasized that “some of a member’s Facebook ‘friends’ are undoubtedly friends in the classic sense” and that a relationship between a judge and a lawyer may, under certain circumstances, warrant disqualification. But, the court noted, “[a]n assumption that all Facebook ‘friends’ rise to the level of a close relationship that warrants disqualification simply does not reflect the current nature of this type of electronic social networking.”

Read the full opinion here.

Breaking News: Florida’s 3rd DCA Decides Facebook Friendship No Cause for Recusal

Today, Florida’s 3rd DCA upheld a trial court judge’s refusal to recuse herself based upon a Facebook friendship with an attorney on one side of a civil case in her courtroom.  The opinion indicates that the 3rd DCA has sided with Florida’s 5th DCA analysis in the “judges on Facebook” conversation and respectfully acknowledges that the 3rd DCA is in conflict with its “sister court,”the 4th DCA.

The opinion provides three reasons for its decision, which is based on the 5th DCA’s finding that a Facebook friend does not necessarily indicate a close relationship. First,many individuals have literally thousands of Facebook friends. Second, individuals may not recall everyone who has ever become a Facebook friend. And, third, Facebook friends may be the result of Facebook’s data mining technology rather than personal interactions.

The opinion pays respect to the 4th DCA and earlier JEAC opinions by noting that social media and technology has evolved and perhaps several years ago, a Facebook friend connoted greater intimacy, but today the 3rd DCA concludes that a Facebook friendship alone is not enough to establish a well-grounded fear that a judge cannot be impartial or is under the influence of a Facebook friend.

To read the opinion click here