LACBA Update Back Issues - September 2015
Attorneys in Quasi-Judicial Appointments and Social Media Malfunctions
By Lisa Miller, an attorney with Tarzana’s The Marcin Law Firm, LLP, practices civil litigation throughout California and New York. She is a member of LACBA’s Professional Responsibility and Ethics Committee, where she chairs the standing sub-committee on ethics and technology. Ms. Miller teaches Law of Mass Communication/First Amendment at the University of Southern California. She can be reached at (818) 305-2800 or LLM@marcin.com. The opinions expressed are her own.
Once information seeps onto the Internet, it begins a journey over which no individual maintains control. Social media naturally spreads counsel’s comments and information to entities whom counsel doesn’t know and will never know. Social media users acting in quasi-judicial posts (temporary judge, referee, or other court-annexed assignments) must grasp the difference between ethical use of the Internet and ethically risky online participation.
Social Media Overview
The Judicial Ethics Committee of the California Judges Association studied the issues arising from bench officers participating in social media and permits online social networking (Opinion 66). The same rules that govern a judge’s ability to communicate via traditional means apply to Internet activity (California Code of Judicial Ethics Canon 4A: “A judge shall conduct all of the judge's extrajudicial activities so that they do not (1) cast reasonable doubt on the judge's capacity to act impartially; (2) demean the judicial office; (3) interfere with the proper performance of judicial duties, or (4) lead to frequent disqualification of the judge.”). On the Internet, questionable social media interactions that could trigger disqualification are forbidden under Canon 4.
California Rule of Professional Conduct 1-710 expressly links performance in these quasi-judicial roles to Canon 6D, Compliance with the Code of Judicial Ethics (CPRC Rule 1-710, Attorney as Temporary Judge, Referee, or Court-Appointed Arbitrator). Practitioners who act as quasi-judicial officers must be sensitive to the ethics requirements of Canon 6D:
A temporary judge, a person serving as a referee…or a court-appointed arbitrator shall comply only with the following code provisions, in relevant part:
(1) A temporary judge, referee, or court-appointed arbitrator shall comply with Canons 1 [integrity and independence of the judiciary], 2A [promoting public confidence], 3B(3) [order and decorum], 3B(4) [patient, dignified, and courteous treatment], and 3B(6) [refrain from manifestations of bias or prejudice], when the temporary judge, referee, or court-appointed arbitrator is actually presiding in a proceeding or communicating with the parties, counsel, or staff or court personnel while serving in the capacity of a temporary judge, referee, or court-appointed arbitrator in the case.
(2) A temporary judge, referee, or court-appointed arbitrator shall, from the time of notice and acceptance of appointment until termination of the appointment: …3B(7) […avoid ex parte communications, except as specified]…3B(12) [remain impartial…], 3C(1) [discharge administrative responsibilities without bias…]…. (b) Not personally solicit memberships or donations…from [those] appearing before the temporary judge, referee, or court-appointed arbitrator….
Attorneys in quasi-judicial appointments participating in social networking should monitor their social media feeds for ethics violations. For example, before plunging into social media, appointees should master the platforms’ privacy tools and understand their limits. (A site’s most restrictive privacy setting does not control the pages of the appointee’s “friends,” which may allow much greater access, opening an unfortunate work-around. Graphics’ metadata can be mined, and images can be reposted and tagged. Contact via GPS-enabled mobile device can pinpoint locations.)
Special Internet Issues
Ex parte communication. An appointee may accidentally engage in improper ex parte communications when interacting on social media with entities who may appear before the appointee; advocates’ communications about their cases are generally less restricted than judges’. As a result, if an appointee visits an advocate’s page, it may contain posts by other counsel who are socializing online with the advocate, creating the possibility of inadvertent ex parte communication.
Public comment. Public comment on pending matters is generally prohibited. As a result of extensive distribution of data through social networking, appointees may inadvertently offer “public” comment on a pending matter. Comments posted to social networking sites are not “private”—they appear automatically on the feeds of enrolled contacts, accessible to that contact’s online associates. As such, comments on social networking sites are rarely private.
Impartiality. Remarks on social sites that might raise partiality concerns should be avoided. Expressions of bias or prejudice, even outside the judge's judicial activities, may cast reasonable doubt on the judge's capacity to act impartially, including jokes or other remarks demeaning individuals on the basis of race, sex, religion, sexual orientation, disability, age, military or veteran status, or national origin.
Because social networking can connect anonymous users (not everyone on social media uses their full and correct given names), the responsibility to avoid the appearance of bias goes further than a speaker’s own comments. Questionable comments on an appointee’s social media outlets are endlessly retrievable and accessible to the appointee’s contacts (and their contacts), creating an impression of ratification. Appointees should delete or otherwise repudiate questionable posts that attach to the appointee’s social media feed—this requires monitoring.
Graphics (and audio). Most social media platforms allow users to post photos, videos, and audio tracks; link to other sites; and review products, services, websites, and public figures. Some posts can collide with an appointee’s duty to promote confidence in the courts, as well as the duty to refrain from conduct that demeans the judiciary.
Disclosure. Interactions between a quasi-judicial bench officer and entities who may appear before the judge, including those on social media, sometimes create “appearance” problems. Bench officers are prohibited from engaging in undisclosed social or business interactions with entities that appear before them to address and prevent the appearance of bias or prejudice. The quasi-judicial appointee’s disclosure analysis focuses on whether it would be permissible to interact in person with these same entities and the effect of this on an appointee’s ethical obligations.
Appearance of influence. The ethical concern when appointees “friend” entities who appear before them is the appearance that this connection creates. An attorney who participates on an appointee’s social networking site might appear to have a position of special influence, raising questions regarding the appointee’s impartiality (especially when the site is mostly personal).
Direct connections would be less disturbing where the appointee uses the site to update visitors about the activities of legal industry organizations and discuss legal issues, even though some of the enrolled contacts might appear in the quasi-judicial officer’s courtroom.
Disclosure and disqualification. If “friending” an entity is permissible, the next issue is the ethical obligations that arise when the entity has business before the appointee. Disclosure of any existing relationship between the appointee and the entity appearing before the appointee can be an issue. This is especially true if the appointee and the entity are both members of a social networking site (and the individuals are “connected” or “linked”), including the extent and nature of any online contact, to assuage concerns that one side of the conflict wields special influence, subverting impartiality (Cal. Code of Civ. Proc. §170.1(a)(6)(A)(iii)). Disclosure of connections can be complicated and difficult when the bench officer is not aware of all the entities interacting on the bench officer’s social media feeds or pages. This can lead to inadvertent failure to disclose associations, leading to problems with the appearance of impropriety.
Entities with pending matters. Quasi-judicial appointees should not interact on social media with entities that have a matter pending before the appointee. The bench officer should “unfriend” them from the judge’s social media feeds and disclose these actions. Maintaining online contacts while a matter is pending creates appearance problems that probably cannot be cured through disclosure.
Ubiquitous social networking platforms require fresh approaches to traditional ethics sensitivities. For counsel to successfully negotiate the social media overlay to ethical conduct during limited quasi-judicial appointments, they should consider these unique pitfalls. Although appointees may ethically engage on social networking sites, they must take reasonable precautions to avoid unknowingly engaging with entities who could appear or are appearing before them. Regarding cases pending before attorneys acting in appointed quasi-judicial roles, appointees are prohibited from interacting with entities who have or are expected to have matters before them. Even if recusal is unnecessary, appointees must disclose this if it triggers doubts about impartiality.
LACBA's Professional Responsibility and Ethics Committee welcomes new inquiries from LACBA members regarding ethical issues or concerns about professional responsibilities. The identity of the inquirer is kept confidential within the committee. The committee, however, does not publish formal opinions that are the subject of any pending litigation involving the inquirer. If you have an ethical question that you would like the committee to consider, you can mail your written inquiry to Los Angeles County Bar Association, Professional Responsibility and Ethics Committee, P.O. Box 55020, Los Angeles, CA 90055-2020, or e-mail your inquiry marked “Confidential” to Member Services at email@example.com.