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Opinion

Opinion CJE Opinion No. 2018-03

Date: 05/18/2018
Organization: Massachusetts Supreme Judicial Court

Letter Opinion of the Committee on Judicial Ethics

Disclosure of Former Facebook Friendship

You ask for how long you must disclose that a lawyer appearing before you is a former Facebook friend. We left this question unanswered in Letter Opinion 2016-01. 

In Letter Opinion 2016-01, the Committee on Judicial Ethics advised that the Code of Judicial Conduct prohibits a judge from being a Facebook friend with any lawyer who is reasonably likely to appear before that judge. We stated that this conclusion requires a judge to review the judge's Facebook friends and "unfriend" lawyers likely to appear before the judge. Aware that Facebook friends may range from close friends to virtual strangers, our rationale for requiring unfriending rested on the awareness that "[e]ven the most casual of Facebook friends may, for example, acquire personal information about the judge (e.g. celebration of a family event, a vacation destination) that could be used to convey the impression that the Facebook friend has special knowledge about and access to the judge."  Letter Opinion 2016-01. This same rationale led us to impose a disclosure requirement. We advised that, "[i]f a judge knows(1) that a lawyer appearing before the judge is a former Facebook friend, the judge should disclose the existence and nature of that past Facebook friendship even if the judge believes there is no basis for disqualification." Letter Opinion 2016-01. See Rule 2.11, Comment [5]. We did not, however, impose a time limit after which disclosure would no longer be required based solely on the former Facebook relationship.

In Letter Opinion 2016-08, we required a judge who uses LinkedIn to disconnect with any attorney reasonably likely to appear before that judge. We did not, however, impose a mandatory disclosure requirement. We instead stated that, "[i]f a judge knows that a lawyer appearing before the judge is a former LinkedIn connection, the judge should consider the nature of that past connection to determine whether disclosure is warranted." Letter Opinion 2016-08. Our rationale for not mandating disclosure in the LinkedIn context was that LinkedIn is primarily used for sharing professional, rather than personal, information, so a former LinkedIn connection is typically less likely to have acquired personal information about a judge that could be used to convey the impression of special knowledge and access.

The social media landscape has continued to evolve at a rapid rate, and we recognize that more new judges arrive on the bench with an-ever larger network of Facebook friends, many of whom may be most accurately described as acquaintances.  In some cases, the past or present relationship may be so minimal that the Facebook friend is in essence a stranger.  Going forward, we believe that the same disclosure standard should apply to both Facebook and LinkedIn.  When a judge knows that a lawyer appearing before the judge is a former Facebook friend, the judge should consider the nature of the particular relationship to determine whether disclosure  is warranted. In making this fact-based assessment, the judge should consider the nature of the (now-former) online friendship as well as the extent of any other relationship between the judge and the lawyer. The judge should additionally consider the personal information the judge has posted online that might be used by another to convey the impression of special access to the judge. A judge must always act to promote public confidence in the judiciary's integrity and impartiality and to avoid even the appearance of impropriety.

We modify the advice given in Letter Opinion 2016-01 as follows. When a lawyer who was a former Facebook friend appears before a judge, disclosure is no longer presumptively required. The judge should exercise his or her sound discretion based on all the facts to decide whether to disclose.

(1) The Code defines "know" to require actual knowledge of the fact in question, although knowledge may be inferred from circumstances.

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