The latest ethical dilemma concerning social media and the law that has been reported involves an aggravated battery case that was heard in Will County. It turns out that the judge’s children were Facebook “friends” with family members of the alleged victim.
The judge responded to the defendant’s motion for a new trial by filing an affidavit stating that his children are adults and as such, he does not supervise their friends. Further, the Judge states that he is not on any electronic social media sites himself.
The Illinois Code of Judicial Conduct states that:
“A judge should not allow the judge’s family, social or other relationships to influence the judge’s judicial conduct or judgment.” Illinois Supreme Court Rule 62
The Rules also provide for disqualification when:
(1) A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where:
(a) the judge has a personal bias or prejudice concerning a party … or
(e) the judge or the judge’s spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person
(i) is a party to the proceeding … or
(iv) is to the judge’s knowledge likely to be a material witness in the proceeding. Illinois Supreme Court Rule 63(C)(1)
“Dennis Rendleman, a member of the Illinois Judicial Ethics Committee, said the facts surrounding the personal relationships should carry more weight than a simple Facebook connection.
Though he said judicial conduct on social media has yet to be addressed in Illinois, the national consensus so far has been one of “caution and fear.” No one knows how to proceed yet, he said, and the few opinions available come from people who don’t fully understand social media.
The Virginia State Bar disciplined an attorney this year for not putting proper advertising disclaimers on his blog, and a Florida judicial ethics committee said in 2009 that judges in that state shouldn’t be Facebook friends with attorneys who appear before them.
Ultimately, Rendleman said, the Facebook friend listing itself isn’t as meaningful as the facts of the case and whether, for example, the children of the two families discussed the case online.
“Facebook friends doesn’t mean anything any more than saying you’re both members of a country club or you both have the same library card,” Rendleman said. “It says you both have the same something, but it doesn’t tell you anything about what that means.” ”
My take: I don’t see how this judge can be held responsible for the social media “friends” of his adult children, particularly when there is no indication that they were aware of this case or discussed it.
Any other rule would basically make social media off-limits, not only for judges, but for their family members as well. I don’t think it is a good thing to turn judges and their families into cloistered individuals living 20th Century lives in the 21st Century.
Personally, I am the Facebook friend with the adult son of a sitting United States Supreme Court Justice (in addition to Facebook, he and I have been real-world friends for nearly thirty years). I can’t imagine how anything I would post there would ever come into the purview of this Justice or bias her in any possible way. And this Justice’s son is a successful businessman whose own children are on Facebook. Are they all to be required to cancel their accounts? Where does this end?
I think any ethics rules that we enact should be sensible and fair. Any actual bias should of course be a ground for recusal. But we should not go overboard and find an “appearance of impropriety” every time that a judge’s son is a mere acquaintance with a party’s relative (unless there is reason to believe that this relationship has caused an undue influence or improper “ex parte” discussion of the matter out of court).