Can we be Facebook friends? That’s one question left open by the ABA earlier this month in Formal Opinion 488, on the subject of judges’ personal relationships with lawyers as grounds for disqualification. While spotlighting judicial ethics duties in maintaining impartiality, the opinion fails to provide some needed guidance on social media relationships.

Model Code of Judicial Conduct rules

Under Rule 2.11(A)(2) of the Model Code of Judicial Conduct, judges must disqualify themselves when their impartiality may reasonably be questioned, including (not limited to) where the judge’s spouse or domestic partner (and certain of their relatives) is a lawyer or party in the proceeding.

In Opinion 488, the ABA Ethics Committee advises on situations that fall outside the bounds of Rule 2.11(A)(2); that is, where judges may have “social or close personal relationships with the lawyers or parties” but not as a spouse, domestic partner or other family member.

The Committee identifies three categories of such relationships between judges and lawyers: acquaintanceships; friendships; and close personal relationships.

In a common-sense application of Rule 2.11(A)(2), the Committee concluded that judges are not required to disqualify themselves or make disclosure when they are merely acquainted with a lawyer — for instance through being members of the same worship-place, gym or civic organization, or even having been co-counsel on a case before the judge took the bench. Standing alone, acquaintanceship is not a reasonable basis to question a judge’s impartiality, the Committee said.

“Friendship” implies a greater degree of affinity, according to the opinion. Friends may be casual (periodically meeting for a meal, staying in touch through calls or correspondence) or closer (routinely spending time together, vacationing together, sharing a mentor-protegee relationship developed while colleagues). Not all friendships require disqualification, but there may be situations “in which the judge’s friendship with a lawyer or party is so tight” that there might be reasonable questions about the judge’s impartiality. It’s a matter of degree, the Committee advised.

Last, a judge may have a personal relationship that goes beyond friendship but that still does not implicate Rule 2.11. The judge may be involved romantically with a lawyer, or desire a romance; the judge and a lawyer may be amicable ex-spouses; or the judge may be a god-parent to a lawyer’s child or vice versa. Existing or desired romantic relationships require disqualification, said the Committee. “Other intimate or close personal relationships with a lawyer or party” at least require disclosure “even if the judge believes that he or she can be impartial,” and could require disqualification — it depends on the circumstances, the Committee said.

What’s left out?

Over at Professional Responsibility Blog, Prof. Alberto Bernabe points out that while the opinion is sensible, it doesn’t deal with an issue of concern to many lawyers — namely social media “friendships” with judges. (Elected judges in particular sometimes seek out such virtual friendships.) The issue is also the subject of several state ethics opinions, which have been somewhat divergent in their approaches.

Opinions in Ohio and New York, for instance, suggest that a social media friendship with a lawyer is not a per se basis for judicial disqualification. Opinions in some other jurisdictions are more restrictive, and bar judges from being Facebook friends with lawyers who are currently appearing before them (California) or even may appear before them (Massachusetts).

Late last year, the Florida Supreme Court ruled in a divided opinion that there is no basis to single out social media “friendships” between judges and lawyers for a per se rule of judicial disqualification. That makes sense to Prof. Bernabe and other commentators (see here): given that real-life friendships aren’t automatically disqualifying, why should virtual ones be?

But earlier this year, a Wisconsin court of appeals rejected a per se rule while still holding in a child custody case that accepting a Facebook “friend” request from a party with a motion pending creates an appearance of impropriety and warrants judicial disqualification.

The ABA Ethics Committee could have been more helpful in clarifying the social media rules of the road on this issue for lawyers and judges. In the meantime, lawyers should be mindful of their state’s version of Model Rule 8.4(f), which bars knowingly assisting a judge in conduct that violates the rules of judicial conduct, as well as any applicable state ethics opinions or cases that make it unfriendly to be a (social media) friend.