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Don't Let Clients Friend Judges on Facebook

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By George Khoury, Esq. on February 26, 2019 5:57 AM

When it comes to using Facebook and other forms of social media during the pendency of case, lawyers have some pretty strict rules about what clients should and shouldn't post. For instance, not talking about the case, or anything related to the case, or anything that would make them look bad, is just par for the course.

But after the ruling out of Wisconsin's court of appeals this last week, it's probably a good idea to add one more rule for clients: Don't "friend" the judge!

Facebook Friends are Partial

In a child custody matter out of Wisconsin, a couple was fighting over custody of their child. After submitting arguments to the court, the mother, who sought to take sole custody, sent the judge in their case a Facebook friend request. Surprisingly, the judge accepted that request.

Even more surprisingly, that connection was never disclosed to the father, and the judge ruled in the mother's favor based on his belief that she was more credible. However, the child's Guardian Ad Litem saw a suspect Facebook post on the mother's account, and upon closer examination, found out the judge and mother were friends on Facebook. The GAL notified the father, who then sought reconsideration.

Initially, the Facebook-casual judge rejected that motion. On appeal, the Wisconsin court of appeals reversed, explaining that judges need to maintain the appearance of impartiality, and becoming Facebook friends with a litigant whom the judge is about to rule in favor of calls that impartiality into question. Additionally, the appellate court remanded the matter to a different judge.

No Bright Line Rule for Judges

Although the appellate court was unwilling to provide a "bright line rule" concerning a judge's use of electronic social media (or ESM as the court calls it), for lawyers, the rule is simple: Don't let clients reach out on social media to anyone with any connection to the administration of justice. Clients should not be friending judges, court clerks, and should definitely not be friending jurors.

Notably though, the court does not explain that judge in this case made a big social media gaff by not having a "public figure" profile that would allow the public to "follow" the judge, without the judge needing to accept friend requests.

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