Risk Update

More on Judicial Conflicts — Recent ABA Ethics Opinion & The Facebook “Friend” Factor (and Another Judge in the News)

A timely update from Karen Rubin, considering yesterday’s story about the judge disqualified for online “likes.” Today’s question is about the ‘friend click’ before the like: “ABA opinion on judges and recusal based on personal relationships leaves some open questions” —

  • “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.”
  • “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.”
  • “‘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.”
  • “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.”
  • “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 full article has links to various decisions and commentaries, and is worth a detailed read for those curious.

Atty Slams Bid To Remove Judge From BP Oil Spill MDL” —

  • “A Louisiana federal court should deny a Florida attorney’s motion for a judge to recuse himself from sprawling multidistrict litigation over the 2010 Deepwater Horizon oil spill as the alleged conflicts are minimal at best, irrelevant to present matters and have since been mitigated, a Louisiana lawyer has argued.”
  • “U.S. District Judge Carl J. Barbier should not bow out from the litigation involving BP and the 2010 spill because he previously owned debt instruments for Halliburton and Transocean, as the judge divested himself of the assets back in June 2010, owning the assets didn’t amount to a conflict under legal precedent, and attorney Brian J. Donovan fails to establish that they have led to conflicts, according to Tuesday’s memorandum by Stephen Herman.”
  • “‘Donovan [does not] point to any ‘extrajudicial’ sources to support his claims of alleged ‘deep-seated favoritism or antagonism’ that would supposedly make it impossible for the court to be fair and impartial in the Donovan cases,’ the brief reads. ‘There is absolutely no basis for recusal simply because, over the past nine years, the court has issued a handful of orders with which Donovan apparently disagrees.'”
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