QUESTION:
A judge in front of whom you regularly practice sends you a Facebook friend request, which you accept. Later, during a particularly contentious trial before that judge, you make a Facebook post lamenting the length of the trial and state, “I hope tomorrow is my last day of this.” The judge comments on your post, “It will be,” to which you respond, “I have a very wise judge.” The judge “Likes” this response. These communications are:
A. Prohibited because it is improper for a judge to be Facebook friends with an attorney practicing before the judge’s court.
B. Prohibited because they are ex parte communications with a judge in violation of Rule 3.5: Impartiality and Decorum of the Tribunal.
C. Permitted because the communications did not deal with any substantive information about the case.
D. Permitted because the judge requested to be Facebook friends with you, and not vice versa.
CORRECT ANSWER: B.
Prohibited because they are ex parte communications with a judge in violation of Rule 3.5: Impartiality and Decorum of the Tribunal.
Lawyer communication with a judge during the pendency of a matter before that judge is broadly prohibited by the rules of professional conduct in most states. In a North Carolina Judicial Standards Commission Inquiry, a judge received a public reprimand for Facebook exchanges with an attorney essentially the same as the ones set forth in this hypothetical. See North Carolina Judicial Standards Comm. Inquiry No. 08-234 (March 25, 2009). The Commission based the finding of impropriety on the fact that the communications were made during the pendency of the proceeding, regardless of their content. The Commission similarly found that the attorney should have refrained from communicating directly with the judge to avoid violating North Carolina Rule 3.5(b).
North Carolina rule 3.5(b) is identical to Model Rule of Professional Conduct 3.5(b), which states that a lawyer shall not “communicate ex parte with [a judge, juror, prospective juror or other official] during the proceeding unless authorized to do so by law or court order.” The corresponding Rules of Professional Conduct for Missouri, Indiana, Tennessee, and New Mexico all use the same language. Kansas Rule 3.5 does not use the language from the Model Rule. Though these communications may not violate the Kansas rules, there are still reasons to be cautious with online communications relating to a client matter.
Many legal communities are tight-knit groups, and frequently friendships and acquaintanceships form between lawyers, judges, and other court personnel. These relationships are not prohibited by the rules of professional conduct. Nevertheless, lawyers should be very cautious when engaged in litigation before a judge or other fact-finder with whom they may have an out-of-court relationship of any kind. Even seemingly innocuous communications relating to a trial could run afoul of the rules.
Lawyers should also always be aware of their duty of confidentiality when discussing any client matters, even very generally. The duty of confidentiality attaches “not only to matters communicated in confidence…but also to all information relating to the representation, whatever its source.” See Comment [3] to Missouri Rule 4-1.6, Indiana Rule 1.6, and Tennessee Rule 1.6 and Comment [5] to Kansas Rule 1.6 and New Mexico Rule 16-106. Posting any information on social media relating to a case may not only violate a lawyer’s duties to a client, but could also create a written record of the violation.
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