Forman: Facebook Friends and Conflicts of Interest
Wednesday, January 20, 2021 | 0
Many questions keep me up late at night and into the early morning. You know, those questions that circle around and around in your head searching for an answer.
Recently I got to thinking: Is it permissible, ethical or even potentially disqualifying for a workers’ compensation judge to be Facebook friends with a party to a workers’ compensation case? To be honest, given I am a workers’ compensation defense attorney and have been for over 17 years, I was considering the implication of having a case before a judge wherein the judge and the applicant attorney are friends on Facebook.
As you are all aware, workers’ compensation, unlike civil or criminal, is an administrative law jurisdiction. As such, our cases are heard not by a jury but by one judge. That imbues that judge with an extreme amount of power in the case. The judge is the sole arbiter of who wins and who loses on any particular case or matter that comes before that judge.
Often, the only time a judge is required to make a decision is when the law is not crystal clear. In other words, it’s a close call and the judge could come down easily one way or another. In these situations is it appropriate to question whether or not the Facebook friendship is enough to tip the scales ever so slightly in one’s favor?
So, what does one do in the middle of the night (3 a.m.) when he cannot stop thinking about the answer to a question? Google, of course.
I was actually surprised to discover that the California Judges Association issued an opinion on the issue way back in 2010. I could not help to think, “Wow, I was only on Facebook for two years at that time.” Reading the decision, it was surprising to me how current the discussions in the decision are at this time.
The opinion is California Judge Association, Judicial Ethics Committee Opinion 66. The title is "Online Social Networking," and you can read it by clicking here.
The opinion goes into depth and discussion of the appropriateness of judges being on Facebook in general and then more specifically being Facebook friends with parties to a case. The possibility that a judge’s opinions alone on Facebook, such as political opinions, etc., could give an indication as to what way a judge may decide on a particular issue. While that is an interesting topic in and of itself, I will leave that discussion for another time.
The relevant portions: [E]xtrajudicial activities are governed by Canon 4A, which states, “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; or (3) interfere with the proper performance of judicial duties.”
In so ruling, the committee recognized that parties might find it troubling if opposing counsel and the presiding judge were connected on social media sites.
As the Hon. Richard L. Gabriel and Professor Nina Varsava noted in an article for the July 2019 issue of Colorado Lawyer magazine, the committee identified four factors that should be considered in determining whether a social media relationship between a judge and an attorney creates the perception of impropriety:
- The nature of the social media platform at issue.
- The number of friends the judge has on that platform.
- The method the judge uses to decide whom to include among his or her friends on the platform.
- How often the attorney at issue appears before the judge.
Our friends in Colorado also pointed out that the committee created a black-line rule: If a judge is Facebook friends with an attorney who has a matter pending before him or her, then the judge must “unfriend” that attorney.
This last sentence was what really caught my attention. We have a bright-line rule here.
So, to the question of whether a judge should be or can be friends with a party, the answer is that in most situations this would be appropriate and is definitely not disqualifying. However, according to this opinion, a judge and a workers’ compensation defense or applicant attorney should not be Facebook friends if there is a matter pending before the judge to which the attorney is a party.
As we head down this path, the question arises: Are workers’ compensation judges bound by the same ethical guidelines as other judges?
The short answer is yes. According to Section 9721.1 of the Code of Judicial Ethics, “Every workers’ compensation administrative law judge shall abide by the Code of Judicial Ethics.”
Therefore, a workers’ compensation judge is also bound by the bright-line rule regarding Facebook friendship.
I am sure there are myriad of opinions on this issue. The workers’ compensation community is a tight community, where judges and attorneys become very familiar with each other, given the day-to-day interactions at the Workers' Compensation Appeals Board. It is understanding that familiarity would lend itself to a casual Facebook friendship every now and again.
However, given the opinion of the California Judges Association, that is likely one Facebook friendship that should be politely declined in the interest of impartiality — perceived or otherwise.
Zachary Forman is a partner at Bradford & Barthel’s Ontario office. This entry from Bradford & Barthel's blog appears with permission.