Thursday, January 30, 2014

How not to practice law (as a judge); and some thoughts on social media

I have not posted a "How not to practice law" story in a while, so here is a short one from today's headlines, as reported by Res Ipsa Loquitur:
Judge Linda D. Schoonover appears to have a different concept of a “friend of the court” party. The Seminole Circuit judge has been removed from a divorce case where she tried to “friend” one of the litigants, Sandra Chace. Chace declined on the advice of counsel to be a friend of Judge Schoonover. Her lawyer says that Schoonover responded with retaliation against her in a type of “scratch a Friend find a Foe” ploy. The judge proceeded to shift most of the marital debt in her divorce to Chace and giving her husband, Robert Loisel Jr., a larger alimony award. Now Schoonover’s colleagues have overturned her order that denied Chace’s motion for disqualification. The panel found that “a judge’s ex parte communication with a party presents a legally sufficient claim for disqualification, particularly in the case where the party’s failure to respond to a Facebook ‘friend’ request creates a reasonable fear of offending the solicitor.” The panel held that “The ‘friend’ request placed the litigant between the proverbial rock and a hard place: either engage in improper ex parte communications with the judge presiding over the case, or risk offending the judge by not accepting the ‘friend’ request.” 
Clearly, the judge should be disqualified.  The court got that part right.  However, the incident raises a couple of other questions in my mind.

First, should the judge be disciplined?  Assuming all the allegations are true, she exercised incredibly bad judgment which, in my opinion, raises a question as to her ability to serve as an impartial judge.  Some people have become so involved in Facebook they seem to forget that they (and Facebook) actually operate in the real world.

Secondly, there is the issue of competence.  The rules of professional conduct in almost every (if not all) jurisdictions now include as part of the measure of competence the duty to understand how to use "technology" and the duty to understand the risks involved in using it.  This, as you may recall, was the result of the debates about metadata a few years ago, but it also relates to the use of social media.

Finally, given that Facebook is causing so many problems, there is the more general question of whether states can do something to regulate or at least provide more guidelines for the proper and improper use of Facebook and other social media by lawyers.  A lot of attention has been devoted to the use of social media as marketing tools for attorney advertising but maybe not enough for the purely social aspects of social media.  Last year, the ABA issued an opinion on the use of social media by judges.  See my post on it here.

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