Thank you for being a friend? Examining social media friendship between judicial officers and lawyers post Charisteas v Charisteas[1]
The recent case of Charisteas v Charisteas concerned a judicial officer of the Family Court of Western Australia who communicated by text, telephone and in person with one of the lawyers appearing before him in an ex parte manner. These communications formed the basis of a successful ground of appeal in the High Court of Australia. While not addressing it explicitly, this case raises important questions regarding communications between judges and lawyers on social media. As such, this article considers whether judicial officers and lawyers can be “friends” on social media and, if they are, what effect that may have on judicial proceedings. While very general guidance exists on this issue, specific guidance for Australian judicial officers is needed to prevent a similar situation to Charisteas occurring in a social media context.
Introduction
The recent High Court case of Charisteas v Charisteas[3] concerned problems that can result from personal communications between a judicial officer and a lawyer who appears before them. In the light of this case, this article discusses its implications for the use of social media by judicial officers.
In Australia, it is well established that, except in the most exceptional circumstances, there should be no communication or association between a judge and one of the parties (or the legal advisers or witnesses of a party) otherwise than in the presence of, or with the previous knowledge and consent of, the other party (or parties) once a case is under way.[4] A judicial officer should take care not to request or receive private communication from a witness or party.[5] Lawyers for one party can only “approach a judicial officer in chambers when the lawyer for the other party is present, or with the knowledge and consent of the other party’s lawyer”.[6] There are exceptional circumstances when it is acceptable for a judicial officer to communicate with only one party, and not both — for instance, in ex parte applications.[7]
Charisteas involved a husband and wife who originally litigated in the Family Court of WA. The litigation commenced in 2011 and continued for many years. The trial judge delivered judgment and made orders regarding the property dispute between the parties in February 2018. In May 2018, the husband’s lawyer wrote to the barrister who had appeared for the wife and stated that the trial judge and the barrister acted outside of court in a manner inconsistent with their respective obligations.[8]
The lawyers complained that, while the trial judge presided over the matter, the wife’s barrister met with him for a drink or coffee approximately four times. They also spoke by telephone about four times and exchanged many text messages.[9] The communication stopped when evidence was taken, and it commenced again before final submissions. It continued for 17 months when the written reasons for the judgment were reserved.[10] They also exchanged text messages sporadically during part of the trial.[11] The barrister said that they did not discuss the “substance” of the case.[12] The husband unsuccessfully appealed to the Full Court on the grounds that there was a reasonable apprehension of bias.[13] In a unanimous judgment, the High Court upheld the husband’s appeal. The court stated:[14]
[T]he apprehension of bias principle is that “a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”. The principle gives effect to the requirement that justice should both be done and be seen to be done, reflecting a requirement fundamental to the common law system of adversarial trial — that it is conducted by an independent and impartial tribunal. Its application requires two steps: first, “it requires the identification of what it is said might lead a judge … to decide a case other than on its legal and factual merits”; and, second, there must be articulated a “logical connection” between that matter and the feared departure from the judge deciding the case on its merits. Once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed.
Their Honours continued:[15]
As five judges of this Court said in Johnson v Johnson, while the fair-minded lay observer “is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice”.
Ordinary judicial practice, or what might be described in this context as the most basic of judicial practice, was relevantly and clearly stated by Gibbs CJ and Mason J in Re JRL; Ex parte CJL in 1986 by adopting what was said by McInerney J in R v Magistrates’ Court at Lilydale; Ex parte Ciccone in 1972:
“The sound instinct of the legal profession — judges and practitioners alike — has always been that, save in the most exceptional cases, there should be no communication or association between the judge and one of the parties (or the legal advisers or witnesses of such a party), otherwise than in the presence of or with the previous knowledge and consent of the other party. Once the case is under way, or about to get under way, the judicial officer keeps aloof from the parties (and from their legal advisers and witnesses) and neither he nor they should so act as to expose the judicial officer to a suspicion of having had communications with one party behind the back of or without the previous knowledge and consent of the other party. For if something is done which affords a reasonable basis for such suspicion, confidence in the impartiality of the judicial officer is undermined.”
The communication between the trial judge and the wife’s barrister was not made in the presence of or with the other party’s knowledge or consent.[16] Their Honours held that:[17]
A fair-minded lay observer, understanding that ordinary and most basic of judicial practice, would reasonably apprehend that the trial judge might not bring an impartial mind to the resolution of the questions his Honour was required to decide. The trial judge’s impartiality might have been compromised by something said in the course of the communications with the wife’s barrister, or by some aspect of the personal relationship exemplified by the communications.
Their Honours allowed the appeal and remitted the case for rehearing to the Family Court of WA.[18]
Charisteas did not address the issue of social media contact between a judicial officer and a party or their lawyers. However, it did consider texting, which can be viewed as similar to sending private social media messages because both can involve sending and receiving messages instantly and potentially frequently.[19] As a result, the case has implications for social media use by judges and the lawyers who appear before them by giving rise to two important questions. First, can judicial officers and lawyers be “friends” on social media? And second, if they are, what effect might that “friendship” have when the lawyer appears before the judicial officer during judicial proceedings?
Social media encompasses “social interaction via technological means”:[20]
These technological means allow users to interact with vast amounts of information in unprecedented ways, and allows for personalization as a result of the ability to control the flow of information. Examples of popular social media include: Facebook, Twitter, YouTube, Instagram, LinkedIn and blogs. A person can use social media to share information, including comments, photographs and videos easily and it is normally free to do so. A person merely needs internet access on a computer or a digital media device to use social media. A large number of people can see what a social media user shares, and the information shared “may remain on the internet in perpetuity”. A social media user can also add comments, photographs, etc. to an existing social media post. Social media users can modify their privacy settings to control who can see their social media accounts and posts.
When someone posts on social media, others can see it immediately[21] and the posts may be permanent.[22] If someone deletes a social media post, others may still be able to see it.[23] Social media is ubiquitous. Over 3.6 billion people use it worldwide,[24] including about 80% of Australians.[25] Australians spend, on average, one hour and 45 minutes daily on social media.[26] Facebook and YouTube are the most popular social media in Australia.[27]
In recent times, judicial officers have been expected to engage with the public;[28] however, when someone becomes a judicial officer, they accept some limits on their actions and a need to honour ethical obligations.[29] If judicial officers use social media, it can show the public that they are in touch with what occurs in their communities.[30] A judicial officer’s social media use can impact the public’s views of that person, the courts generally[31] and their confidence in both.[32]
Unfortunately, social media is not always used wisely. Several American judicial officers have acted inappropriately on social media, which has led to serious repercussions — for example, one judicial officer decided to leave his position after he was accused of making an inappropriate social media post.[33] Ethics committees or other judicial bodies have admonished American judicial officers who act inappropriately on social media: the State of New York Commission on Judicial Conduct admonished a judicial officer who made Facebook posts that implied former President Bill Clinton murdered Jeffrey Epstein;[34] and the State of Tennessee Board of Judicial Conduct publically reprimanded a judicial officer who discussed the law on his Facebook page, including providing legal advice for shoplifters.[35] In the UK, Magistrate Steve Molyneux tweeted about a case that he presided over while he was in the courtroom; a colleague subsequently complained and he resigned.[36]
The author was unable to find any instances of Australian judicial officers acting inappropriately on social media during a WestLaw AU and LexisAdvance search in March 2022, beyond the above-mentioned Charisteas case,[37] which involved texting, telephone calls and in-person communications.[38]
It is already accepted that judicial officers do — and should be able to — use social media. Many credible sources in Australia and overseas support this.[39] The Judicial College of Victoria gave an informal survey to its members about their social media use. Some of the survey participants stated that, while they use social media regularly, they are cautious about the posts they make and about which friend requests they accept.[40] An increasing number of judicial officers will use social media for personal and professional reasons over time,[41] and therefore it is likely that more judicial officers will be social media friends with the lawyers who appear before them.[42]
Australian ethical manuals for judicial officers provide very brief, general guidance on this issue, discussed further below.[43] Australian courts do not appear to have considered whether Australian judicial officers can be friends on social media with lawyers, or what to do when they are friends and the lawyer appears before them. More detailed guidance would assist judicial officers in navigating this ethical concern.[44]
This article discusses what being “friends” on social media means more generally, before exploring existing social media guidelines for judicial officers in Australia and abroad. It then discusses the implications of judicial officers and lawyers being social media friends. Ultimately, it argues that consideration should be given to modifying the Guide to Judicial Conduct to provide more guidance to judicial officers regarding social media friendship with lawyers.[45]
Being “friends” on social media
A rose is a rose is a rose. A friend is a friend is a friend? Not necessarily. A social network “friend” may or may not be a friend in the traditional sense of the word.[46]
When someone creates a profile page on a social media platform, they can request to become the “friend” of, or to “follow”, any other person who uses that platform. If a friendship/follow request is accepted, the two users can interact by, for example, seeing their status updates and sending each other private messages. They can also see the other user’s friends/followers, unless the other user modifies their privacy settings.[47]
When a Facebook user adds a friend, the two friends can see each other’s profile, updates, photographs and videos. Users can have up to a maximum of 5,000 friends and can control who can add them as a friend by changing their privacy settings. They can also choose to block their friends. When this happens, the friend who is blocked can no longer see the Facebook user’s profile.[48]
Following someone on Twitter means that another Twitter user can see that first user’s tweets, which appear on the other person’s timeline and homepage; they will also appear in that first user’s list of followers. Further, direct messages can be sent between the two.[49]
On Instagram, a user can follow another user to see their posts, profile and stories, and to send direct messages to each other.[50]
Importantly, social media “friendship” may be between two strangers or two acquaintances. Being friends on social media does not mean that the friends’ relationship is like those outside of social media. Social media friends may not have trust, respect or affection for each other. While someone might have a few social media friends, another might have hundreds.[51]
People may initiate new friendships on social media and/or interact with their existing friends.[52] Research has found that people tend to use social media to keep or strengthen friendships rather than to start new ones.[53]
Social media friendships between judicial officers and lawyers can be concerning because they can lead to an allegation of an apprehension of bias and/or a judicial officer recusing themselves and/or a judicial officer needing to disclose the social media friendship.[54]
Judicial disclosure
The Guide to Judicial Conduct does not address the question of when social media use ought to be disclosed. However, it does address specific issues that judicial officers may want to disclose, such as when a judicial officer has shareholdings that are relevant to a matter before them.[55] It also addresses issues concerning a judicial officer disclosing their friendships or acquaintanceships.[56]
Ethical guidelines for judges on social media
During the past 15 years, the ethical bodies in many jurisdictions in Australia and internationally have created ethical guidance[57] or advisory opinions[58] on social media use, and judicial officers have handed down judgments on the topic.[59] In Australia, the Federal Court of Australia created the Draft Guidelines for Judges about Electronic Social Media in 2013.[60] However, the main text in Australia that contains ethical guidance applicable to judicial behaviour is the Guide to Judicial Conduct, which was published for the Council of Chief Justices of Australia and New Zealand by the Australasian Institute of Judicial Administration Inc (AIJA Guide).[61]
The AIJA Guide gives “principled and practical guidance to judges as to what may be an appropriate course of conduct, or matters to be considered in determining a course of conduct, in a range of circumstances”.[62] It “has considerable prestige, [but] it has no legal standing. Moreover, it is indicative or suggestive, and not prescriptive”.[63]
In 2016, at a meeting of the Council of Chief Justices, it was decided to modify the AIJA Guide to include new information, especially about social media and judicial officers.[64] The third edition was published in 2017,[65] with a special chapter titled “Social Media”.[66]
The social media chapter briefly covers many different issues involving judicial officers’ social media use, such as anonymity and privacy.[67] It is not prescriptive and leaves judicial officers with considerable flexibility in this area. As stated above, Australian courts do not appear to have considered whether Australian judicial officers can be friends on social media with lawyers, or what to do when they are friends and the lawyer appears them.[68] The third edition of the AIJA Guide also contains a new chapter about ethical issues concerning the family members of judges;[69] in addition, the new social media chapter has a paragraph about the social media use of the family members of judicial officers.[70]
The New Zealand judiciary has a similar document, Guidelines for Judicial Conduct2019, which contains a paragraph about judicial officers using social media.[71]
In 2012, the Senior Presiding Judge for England and Wales and the Senior President of Tribunals published guidelines for judicial officers about blogging.[72] In 2013, the Judiciary of England and Wales amended their Guide to Judicial Conduct to include social media.[73] Many American judicial ethics committees and similar organisations,[74] including the American Bar Association,[75] have created guidelines and advisory opinions for judicial officers regarding social media. The Global Judicial Integrity Network examined challenges regarding judges’ social media use and created non-binding guidelines on the issue in 2018.[76]
Judicial officers and lawyers being friends on social media
There are many different guidelines and advisory opinions that examine judicial officers being social media friends with lawyers. Some forbid it,[77] some permit it with relevant warnings[78] and some discuss the issue generally.[79]
The guidelines in Australia
The Federal Court of Australia’s Draft Guidelines for Judges about Electronic Social Media state:[80]
Social media connections with the judge may raise perceptions of possible bias if those connections include members of the legal profession, particularly where they belong to a law firm that is well known for appearing in proceedings before the Court. This may also raise possible disclosure or disqualification issues. If a judge has a social media connection with a lawyer or party who is either appearing or will soon appear before him or her, the judge should consider whether the connection should be disclosed either prior to or at commencement of the matter.
The Guidelines’ social media chapter includes the following:[81]
A judge must also be mindful of the persons with whom the judge has a connection through the use of social media. An established connection between the judge and an individual, or between the judge and a lawyer, might be problematic if the person or lawyer comes before the judge. It may be difficult for a judge to keep track of all of the persons with whom the judge has had contact or connection using electronic media, but the record of that contact will always exist. To an outsider, the contact may seem significant, even though the judge has no memory of it.
The chapter also adds: “Comments by a judge relating to litigation or litigants before the judge, or to lawyers before the judge, should be avoided.”[82] Relevantly, an earlier chapter states the following regarding friendship between judicial officers and lawyers generally (outside of the social media context):[83]
Friendship or past professional association with counsel or a solicitor is not generally to be regarded as a sufficient reason for disqualification. An existing commercial or business relationship between the judge and counsel or a solicitor in a matter to be heard by the judge will require very careful consideration, as will the question of the extent and detail of the disclosure required by the judge in the circumstance.
Finally, it advises that “a judicial officer should consider whether to inform the parties of an acquaintanceship before the hearing begins”.[84] It goes on to say:[85]
There is a long-standing tradition of association between bench and bar, both in bar common rooms and on more formal occasions such as bar dinners or sporting activities. Many judges attend Law Society functions by invitation. The only caveat to maintaining a level of social friendliness of this nature, one dictated by common sense, is to avoid direct association with members of the profession who are engaged in current or pending cases before the judge.
The guidelines overseas
The Canadian Judicial Council’s 2010 Consultation on Ethical Principles for Judges stated that 73% of the approximately 950 respondents to their survey (which consisted of judicial officers, lawyers, academics and the public) thought that judicial officers should not be social media friends with any lawyer who could appear before them in court.[86] While this is merely survey data and not guidelines or an advisory opinion, it provides insights regarding attitudes to this issue.
The New Zealand Guidelines for Judicial Conduct2019 state:[87]
[C]are is needed to avoid any compromise to judicial independence or impartiality through expressions of opinion or online activities. This could include links through social media such as for example friending a litigant that may give rise to conflicts of interest or a perception of bias.
American guidelines adopt varied opinions on this topic.[88] The advisory opinions of the ethical bodies of some States — such as Florida,[89] Oklahoma[90] and Massachusetts[91] — take a “strict approach” and forbid judicial officers from being friends on social media with any lawyer who could appear before them.[92] Other advisory opinions — such as those from New York,[93] Maryland[94] and New Mexico[95] — state that a social media friendship between a judicial officer and a lawyer, without any other supporting facts (such as a real life friendship) is insufficient for a judicial officer to recuse themselves. According to the American Bar Association’s Formal Opinion:[96]
Because of the open and casual nature of ESM communication, a judge will seldom have an affirmative duty to disclose an ESM connection. If that connection includes current and frequent communication, the judge must very carefully consider whether that connection must be disclosed. When a judge knows that a party, a witness, or a lawyer appearing before the judge has an ESM connection with the judge, the judge must be mindful that such connection may give rise to the level of social relationship or the perception of a relationship that requires disclosure or recusal.
In the Florida case of Domville v State of Florida[97] the appellant applied to disqualify the trial judge because the prosecutor and the trial judge were Facebook friends. The appellant argued that the Facebook friendship meant that the trial judge could not be “fair and impartial”.[98] Their Honours applied the Florida Code of Judicial Conduct,[99] which states that a judicial officer cannot add lawyers who appear before them as friends on social media and cannot allow lawyers to add judicial officers as their social media friends. Such friendships on social media “reasonably conveys to others the impression that these lawyer ‘friends’ are in a special position to influence the judge”.[100] Because the Facebook friendship would cause a layperson to believe that the judicial officer was not impartial and could not provide a fair trial, their Honours quashed the order of a lower court that refused the application to disqualify the trial judge and remanded the matter to the Circuit Court.[101]
About five years after the Domville case, another Florida judgment — Law Offices of Herssein and Herssein, PA v United Services Automobile Assn[102] — considered this issue. The case involved the plaintiff applying for the trial judge to be disqualified because he was Facebook friends with a lawyer who represented a possible party and a possible witness in the matter. Their Honours had to decide whether “a reasonably prudent person would fear that he or she could not get a fair and impartial trial because the judge is a Facebook friend with a lawyer who represents a potential witness and party to the lawsuit”.[103] Their Honours stated that a Facebook friendship does not necessarily mean that a close friendship exists in reality. A social media friend may be an acquaintance or a stranger, and users may not be able to remember every person they are friends with on the platform. Since a social media friendship is different from real life friendship, a judicial officer who is social media friends with a lawyer can still be impartial. Their Honours disagreed with the Domville decision and denied the request for the judicial officer to disqualify himself.
Discussion
As discussed above, a friendship on social media between a judicial officer and a lawyer may lead to an allegation of an apprehension of bias and/or a recusal and/or an appeal. However, the AIJA Guide[104] provides only general guidance on friendships concerning judicial officers and lawyers on social media. This may be considered sufficient since the Guide typically provides only general guidance on other matters as well. Further, Australian judicial officers are considered to be highly ethical and are expected to make the right decisions without more specific guidance. Nevertheless, providing more detailed guidance could help to maintain these high ethical standards in an era of novel and more complex electronic communication.
The AIJA Guide gives advice about friendships between judicial officers and lawyers in real life. Therefore, judicial officers could simply apply this to social media friendships. For example, the Guide clearly states:[105]
Friendship or past professional association with counsel or a solicitor is not generally to be regarded as a sufficient reason for disqualification.
It also states:[106]
There is a long-standing tradition of association between bench and bar, both in bar common rooms and on more formal occasions such as bar dinners or sporting activities. Many judges attend Law Society functions by invitation. The only caveat to maintaining a level of social friendliness of this nature, one dictated by common sense, is to avoid direct association with members of the profession who are engaged in current or pending cases before the judge.
Though an attractive solution, applying such an approach may not be as simple as it first seems. Social media friendships are different from real life friendships. In particular, the public may be more likely to know about them because they can be visible to many, whereas the public may never see some real life friendships.[107] The occasion for challenge is therefore more likely to arise even though social media friendships often extend well beyond what would in ordinary life be regarded as a personal friendship. Where a judge relies on privacy settings to limit access to the social media on which they engage, they must remain conscious of any friendship that might give rise to a reasonable apprehension of bias. For a judge who has an extensive social media presence, it may be difficult to keep track of all their friends and easy to overlook a relevant one.
Another option would be for judicial officers and lawyers to avoid social media friendships altogether, then the issue would no longer exist. While some may choose to do this, it is unrealistic to expect it of all judicial officers. Social media is here to stay. Judicial officers and lawyers may have been friends on social media before one became a judicial officer and it may be impractical to ask them to stop their social media friendship as a result. Further, upon becoming a judicial officer, they might forget to remove lawyers as their friends on social media. People may also enter and exit the legal profession during their careers, which could make ensuring that a judicial officer is not social media friends with a lawyer difficult.
The number of complaints related to judicial officers’ social media use internationally is currently small, but such complaints are increasing and will likely continue.[108] The Charisteas decision may make more judicial officers extra cautious regarding their friendships with lawyers who appear before them (both on and off social media); however, such caution may be forgotten over time. The AIJA Guide is a well-known text that judicial officers can consult through the ages.
If it is accepted that the AIJA Guide should give more guidance on this issue, then the question becomes what that additional guidance should be. A starting point could be dividing the issue up into a few scenarios, including:
-
what should occur when a lawyer and judicial officer are existing friends on social media and the lawyer appears before the judicial officer?
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should a judicial officer and a lawyer become social media friends when the judicial officer might appear before the lawyer?
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does a newly appointed judicial officer need to scrutinise their social media friendships with lawyers?
Because the first scenario is the most likely to affect the outcome of a hearing or trial, it is considered in more depth below. As was emphasised in Charisteas, once a trial is underway or about to get underway, there must be no private communications between a lawyer for one of the parties and the judge. This avoids any reasonable apprehension that the judge’s impartiality might have been compromised by something said in the course of the communications, or by some aspect of the personal relationship exemplified by the communications. As the AIJA Guide pithily states, judicial officers should “avoid direct association with members of the profession who are engaged in current or pending cases before the judge”.[109] Judicial officers need to consider how to apply this idea in the social media context, where electronic direct association could easily occur.
What should occur when a lawyer and judicial officer are existing friends on social media and the lawyer appears before the judicial officer?
The AIJA Guide could readily be modified to provide more guidance concerning situations when a lawyer appears before a judicial officer who is their social media friend. It could state that:
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the judicial officer and the lawyer should not communicate about the case before them on social media – a prohibition clearly required by the apprehension of bias principle;
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the judicial officer should disclose all relevant social media friendships with lawyers who appear before them;
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the judicial officer and the lawyer should stop all communication on social media for the period that the lawyer appears before the judicial officer;
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the judicial officer could unfriend or unfollow the lawyer on social media for the period that the lawyer appears before the judicial officer.
The second, third and fourth ideas are contentious.
The California advisory opinion on this issue states that when a judicial officer and a lawyer are friends on Facebook and the lawyer appears before the judicial officer, the judicial officer should “unfriend” the lawyer and disclose this information.[110] While it could be onerous and inefficient for a judicial officer to constantly look up the lawyers who appear before them on social media, such behaviour could potentially help to prevent allegations of an apprehension of bias and a corresponding appeal.
It may help to list potential factors that a judicial officer should assess when they consider recusal.[111] The California Judicial Ethics Committee provided the following considerations:
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The “nature” of the social media — if a page is more personal, then it is more likely that the lawyer might appear to be able to influence the judicial officer. For example, if a lawyer interacts with a judicial officer’s personal page, as opposed to a group page.
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The number of social media friends a judicial officer has — if a judicial officer has less friends, this means that a lawyer may have more influence on the judicial officer.
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How selective the judicial officer is regarding who they add as a Facebook friend — the pickier the judicial officer, the more likely it may appear that a lawyer can influence the judge.
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How often the lawyer appears before the judicial officer — if a lawyer rarely appears before a judicial officer, then it may be more possible that the lawyer can influence them.
Additional factors to think about are if the judicial officer’s page is personal, with many photos and opinions on books, movies and restaurants. This could make it more likely that the friendship would be problematic.[112]
Amending and expanding the AIJA Guide on the topic of social media use would help to clarify the obligations of judicial officers and avoid inadvertent infringements of the apprehension of bias principle in this developing area.
Conclusion
The world is experiencing “a communications revolution”[113] and social media is a crucial part of it. Social media’s impact is far-reaching — and it has certainly reached the law and the judiciary. One way it has done so concerns judicial officers being social media friends with lawyers. It is therefore important to consider modifying the AIJA Guide[114] to provide more guidance on this issue, particularly in light of Charisteas. This article identified different situations in which guidance may help judicial officers when they assess their social media friendships with lawyers. In particular, it found that the AIJA Guide should advise on the proper conduct when a lawyer and judicial officer are existing friends on social media and the lawyer appears before the judicial officer. This is because such a circumstance may result in a recusal and/or an accusation of an apprehension of bias and/or a ground for appeal. It should be noted that in making any changes to the AIJA Guide it will also be important to consider the ethical implications of judicial officers being friends on social media with other participants in a trial, such as witnesses and the parties.[115]
Rares has stated the following on this issue:
The judicial role, like other traditional roles in our society, cannot stay static. Yet, in evolving to adapt to new communication norms of our age, judges will need to develop careful insights and behaviours to protect not only themselves and their family’s safety, but also the integrity of their office and the court.[116]
Modifying the AIJA Guide[117] to provide more information regarding friendships between judicial officers and lawyers on social media is one way to help to develop these careful insights and behaviours.
[1] This article was first published by Thomson Reuters in the Journal of Judicial Administration and should be cited as M Bromberg, “Thank you for being a friend? Examining social media friendship between judicial officers and lawyers post Charisteas v Charisteas”, (2022) 32 JJA 14. For all subscription inquiries please phone, from Australia: 1300 304 195, from Overseas: +61 2 8587 7980 or online at legal.thomsonreuters.com.au/search. The official PDF version of this article can also be purchased separately from Thomson Reuters at http://sites.thomsonreuters.com.au/journals/subscribe-or-purchase.
[2] PhD, LLB(Dist), BBA(Hon), Grad Cert University Teaching; Director Higher Degrees (Coursework), University of Western Australia Law School; practising lawyer. The author greatly thanks the Honourable David Newnes, retired Justice of the Supreme Court of Western Australia, for providing feedback on this article. This article is dedicated to the author’s non-biological sister, Ester Klimitz, of Toronto, Canada.
[3] (2021) 95 ALJR 824 (Kiefel CJ, Gageler, Keane, Gordon and Gleeson JJ).
[4] Australasian Institute of Judicial Administration Inc (AIJA), Guide to Judicial Conduct, 3rd ed, 2017 at pp 19–20.
[5] R v Magistrates’ Court at Lilydale; Ex parte Ciccone [1973] VR 122; Haldane v Chegwidden (1986) 41 SASR 546 at 565 (Prior J).
[7] M Groves, “Emailing judges and their staff” (2013) 37(1) ABR 69 at 70.
[8] Charisteas v Charisteas, above n 3, at [7].
[19] A Lenhart et al, “Communications and social media”, Pew Research Centre, 19 December 2007.
[20] Part of this quote is from M Bromberg-Krawitz, “Issues paper for a symposium: challenges of social media for courts and tribunals”, May 2016 at pp 2–3, referred to in M Bromberg, “Right here waiting for you: the new social media chapter in the Australian Guide to Judicial Conduct” (2018) 27 JJA 123 at 124.
[21] K Anders, “Asocial media: when lawyers and judges must disconnect” (2017) 53 Court Review: The Journal of the American Judges Association 174.
[24] Statistica, Number of social network users worldwide from 2017 to 2025, 2022.
[25] Statistica, Social media users as a percentage of the total population Australia 2015–2021, 2022.
[26] A Ramshaw, “Social media statistics for Australia”, Genroe, 11 January 2022.
[27] ibid.
[28] J Marshall, “Judges and social media” (2020) 94(5) Law Institute Journal 67.
[29] S Rares, “Social media — challenges for lawyers and the courts” (2018) 45(2) ABR 105, at 113.
[30] American Bar Association, “Formal Opinion 462: Judge’s use of electronic social networking media”, American Bar Association, 21 February 2013.
[32] United Nations Office on Drugs and Crime and Global Judicial Integrity Network, “Use of social media by judges: discussion guide for the expert group meeting”, Vienna, 5–6 November 2018; D Blitsa, I Papathanasiou and M Salmanli, “Judges and social media: managing the risks” Themis Competition 2015.
[33] Law.com, “Town Justice resigns after probe of his Facebook remarks” Yahoo!Sports, 18 December 2017.
[34] State of New York Commission on Judicial Conduct v Robert Schmidt, New York, 24 August 2020 at https://cjc.ny.gov/Determinations/S/Schmidt.Robert.H.FWC.2020-08-24.pdf, accessed 7 December 2022.
[35] Letter from State of Tennessee Board of Judicial Conduct to Judge Gerald Webb, 5 November 2021 at www.tncourts.gov/sites/default/files/docs/webb_public_reprimand_2021_11_05.pdf, accessed 7 December 2022.
[36] Birmingham Live, “Twitter magistrate resigns after posting court case details online”, 26 April 2009.
[38] The author used the search terms “social media” and “judge” and/or “judicial officer”.
[39] See, eg, J Allsop, “Federal Court of Australia: Guidelines for judges about using electronic social media”, 6 December 2013; AIJA, above n 4, at pp 19–20; Bromberg, above n 20, 128–129.
[40] Marshall, above n 28, at 67. Also note that former Supreme Court of Victoria Justice Lex Lasry has a Twitter account and tweeted frequently while a justice: see https://twitter.com/Lasry08, accessed 7 December 2022.
[41] R Artigliere et al, “Face-off on Facebook: judges and lawyers as social media friends in a post-Herssein World” (2019) 93 Florida Bar Journal 18.
[42] Steven Rares, “Speaking the right social media language” [2019] Federal Judicial Scholarship 6, at [43].
[43] See, eg, AIJA, above n 4, at Ch 9; Courts and Tribunals Judiciary, Guide to Judicial Conduct, March 2019, pp 18–19; Florida Supreme Court Judicial Ethics Advisory Committee, In Re amendments to the rules regulating the Florida Bar: Rule 4-7.6 computer accessed communications, 19 November 2009; Oklahoma Judicial Ethics Advisory Panel, In Re Judicial Ethics Opinion 2011-3, 261 P 3d 1185, 2011; Massachusetts Commission on Judicial Ethics, Opinion No 2016-1, 16 February 2016.
[45] The author believes that this is the first Australian article to consider the social media friendship of judicial officers and lawyers as its primary topic, though some articles discuss it briefly. See, eg, Bromberg, above n 20, at 129–131; M Krawitz, “Can Australian judges keep their friends close and their ethical obligations closer? An analysis of the issues regarding Australian judges’ use of social media” (2013) 23 JJA 14.
[46] The Supreme Court of Ohio Board of Commissioners on Grievances and Discipline, Opinion No 2010-7, 3 December 2010.
[47] ibid.
[48] Facebook Help Centre, “Friending”, 2022 at www.facebook.com/help/1540345696275090, accessed 7 December 2022.
[49] Twitter Help Centre, “Following FAQs”, 2022, https://help.twitter.com/en/using-twitter/following-faqs, accessed 7 December 2022.
[50] Social Buddy, “What Does Followers and Following Mean on Instagram”, 2020, at https://socialbuddy.com/followers-and-following-on-instagram/, accessed 7 December 2022.
[51] Blitsa et al, above n 32, 8; McGaha v Kentucky(Supreme Court of Kentucky, No 2012-SC-000155-MR, 20 June 2013).
[52] D Jeske, Friendship and social media: a philosophical exploration, Routledge, 2019.
[53] S Vallor, “Flourishing on Facebook: virtue friendship and new social media” (2011) 14(3) Ethics and Information Technology 185 at 186.
[54] G Appleby and S McDonald, “Pride and prejudice: a case for reform of judicial recusal procedure” (2017) 20(1) Legal Ethics 89 at 95.
[56] ibid, at pp 15–16.
[57] See, eg, ibid.
[58] See, eg, Florida Supreme Court Judicial Ethics Advisory Committee, above n 43; Oklahoma Judicial Ethics Advisory Panel, n 43; Massachusetts Commission on Judicial Ethics, n 43; New York State Commission on Judicial Conduct, Opinion No 13-39, 28 May 2013; Maryland Judicial Ethics Committee, Opinion No 2012-07, 12 June 2012.
[59] See, eg, Domville v State of Florida 103 So 3d 184 (Fla, 4th DCA, 2012); Law Offices of Herssein and Herssein, PA v United Services Automobile Assn, Supreme Court of Florida, No SC17-1848, 15 November 2018.
[62] ibid, at p ix.
[63] DPP v McNamara [2012] NTSC 81 at [19] (Barr J), cited in Bromberg, above n 20, 124.
[65] ibid at p vii. The AIJA Guide was further updated in November 2020.
[70] ibid, at pp 44–45.
[71] Courts of New Zealand, Guidelines for Judicial Conduct 2019, 2019 at [88].
[72] Senior Presiding Judge for England and Wales and Senior President of Tribunals, “Blogging by Judicial Office Holders”, August 2012.
[73] Judiciary of England and Wales, Guide to Judicial Conduct, p 17 (updated September 2020).
[74] See, eg, Florida Supreme Court Judicial Ethics Advisory Committee, n 43; Oklahoma Judicial Ethics Advisory Panel, n 43; Massachusetts Commission on Judicial Ethics, n 43; New York State Commission on Judicial Conduct, n 58; Maryland Judicial Ethics Committee, n 58.
[76] United Nations Office on Drugs and Crime and Global Judicial Integrity Network, n 30, 1.
[77] Florida Supreme Court Judicial Ethics Advisory Committee, n 43; Oklahoma Judicial Ethics Advisory Panel, n 43; Massachusetts Commission on Judicial Ethics, n 43.
[81] ibid at p 44.
[82] ibid.
[83] ibid, at p 16.
[84] ibid, at pp 15–16.
[85] ibid, at p 34.
[86] Canadian Judicial Council, Consultation on Ethical Principles for Judges, 2010.
[88] S Singh, “Friend request denied: judicial ethics and social media” (2016) 7 Journal of Law, Technology and the Internet 153 at 158. See, eg, Florida Supreme Court Judicial Ethics Advisory Committee, above n 43; New York State Commission on Judicial Conduct, above n 58.
[95] New Mexico Committee on the Code of Judicial Conduct, Advisory opinion concerning social media, 15 February 2016, at p 17.
[97] Domville vStateof Florida, 103 So 3d 184 (Fla, 4th DCA, 2012).
[98] ibid.
[100] ibid.
[101] ibid.
[102] Law Offices of Herssein and Herssein, PA v United Services Automobile Assn (Fla 3rd D Ct App, No 3D17-1421, 23 August 2017).
[103] ibid at 3.
[106] ibid, at p 34.
[107] Steven Seidenberg, “Seduced: for lawyers, the appeal of social media is obvious. It’s also dangerous”, American Bar Journal, 1 February 2011, [39].
[108] New York State Commission on Judicial Conduct, above n 58; Maryland Judicial Ethics Committee, above n 58.
[110] California Judges Association, Opinion No 66, 2011.
[112] California Judges Association, above n 110, referred to in Artigliere et al, above n 41, at 18.
[113] M Warren, “Open justice in the technological age” (2014) 40(1) Monash University Law Review 45 at 46.
[115] See, eg, McManaman v R [2016] 1 WLR 1096, where a man who sat in a public gallery during a trial in the UK sent a friend request on Facebook to a juror; State v Madden Appeal No C-000375, Trial No C-00TRC-8005 (Ohio Ct App Mar 21, 2001), where the trial judge did not abuse his discretion by refusing to recuse himself because he was friends on Facebook with a possible witness; Chace v Loisel, 170 So 3d 802, 803–804 (Fla, 5th DCA, 2014), where the trial judge sent one of the parties in the litigation a Facebook “friend” request; Youkers v The State of Texas (Court of Appeals 5th District of Texas at Dallas, 15 May 2013), where one of the grounds of appeal was that the trial judge was a Facebook friend of the victim’s father and the victim’s father sent the trial judge an ex parte communication on Facebook.