I did not get to hear my friend, Judge Herbert M. Dixon, Jr., give the keynote address at the American Bar Association Annual Meeting session titled “‘Friend is Now a Verb: Judicial Ethics and the New Social Media,” which was sponsored by the ABA’s Judicial Division. Judge Dixon is a former ABA TECHSHOW Board member and is technology columnist for the ABA Judicial Division’s Judges Journal, ABA NOW had some good coverage of Judge Dixon's remarks and Connie Crosby posted her extensive notes and the video the judge showed the audience. The panel discussion following the keynote sounds like it was lively.
Judge Dixon warned the judges about the trouble they could face by friending lawyers on Facebook or using social media to obtain information about witnesses or litigants. He recounted several well-documented horror stories. I definitely think his warnings are well-placed. I also think some of these issues are very challenging.
I've considered some of these issues. Some of them seem to be more about how the tools are used rather than the tool itself. I understand that it is a clear and simple rule, and in many cases appropriate, to say a judge shouldn't "friend" those lawyers who practice in his/her court on Facebook. But should it be a hard and fast rule? I seem to recall a judge who invited all lawyers in a smaller jurisdiction to "friend" him so he, operating without staff support, could place dockets and updates there. That would certainly have been appropriate on a court website, so does it become wrong if done via Facebook? Well, sure there is more to Facebook than that. Facebook can allow lawyers to send hidden direct messages to the judge. But that is sort of like e-mail, isn't it? Or, to be silly, sort of like having a listed telephone number in the directory and answering the phone when it rings.
I get the problem. If the judge is Facebook friends with one lawyer trying a case in the court and not the other, it looks bad. It might even be a violation of judicial ethics. (Deciding that is way outside of my pay grade.) But didn't that exist in the pre-Facebook era, too? Judges go to the same churches with lawyers and often belong to the same clubs. They may cheer for the same high school football team. Some big city lawyers may not appreciate the almost impossible to escape web of relationships in smaller, rural communities.
A recent news item noted that Missouri had passed a law limiting the ability of teachers to "friend" their minor students on Facebook. That doesn't seem unreasonable to many, particularly with the anecdotal accounts of bad teachers using FB as an avenue for exploitation and abuse. And yet, you have to wonder whether a teacher e-mailing or texting a student should be deemed per se wrong. And let's not forget that a lot of text messages are things like "I'm running late" or "Are you here?" Is texting wrong but calling voice on the cell phone OK? Personally, if teachers are taking a small group of students on a field trip in another state, having all of their cell phone numbers seems like a wise precaution rather than a wrongful act.
Judge Dixon knows me fairly well and he knows I am not taking issue with him. But I guess the larger point to me is that the Internet and the mobile web allows us to be directly connected in all sorts of personal ways and I think as a society we are still grappling with the implications of that. I would truly hate for some judge to be in trouble because he Facebook friended a high school chum for the class reunion who was a lawyer who never appeared in his court and they both forgot about it months later when the lawyer did unexpectedly appear in his court for the first time. We have agreed as a society that some guilty should go free as the price for a system where innocents are hopefully not imprisoned. So maybe that means blocking thousands of positive student-teacher interactions in the name of blocking a predator.
I don't mean to suggest I have the answer for I certainly do not. I would always err on the side of protecting children. And yet, you can go back to the days of law school as you read Connie's notes and it will not take long before you say "But wait, what about this particular fact situation?" So it is with rules and exceptions and the law.
I'm sorry I missed seeing Judge Dixon at ABA Annual Meeting as we often run into each other there. So maybe blogging about his keynote serves a similar purpose even though some would say I shouldn't friend him on Facebook-- and, of course, I'm not even licensed to appear in his court.